TITLE 9. HEALTH SERVICES

Historical Note

Adopted under an exemption from A.R.S. Title 41, Chapter 6 pursuant to Laws 1992, Ch. 301, § 61, effective October 7, 1992; received in the Office of the Secretary of State October 14, 1992 (Supp. 92-4). Amended under an exemption from A.R.S. Title 41, Chapter 6 pursuant to Laws 1992, Ch. 301, § 61, effective September 30, 1993 (Supp. 93-3). Amended by exempt rulemaking at 7 A.A.R. 3469, effective July 17, 2001 (Supp. 01-3). Amended by exempt rulemaking at 9 A.A.R. 3296, effective June 30, 2003 (Supp. 03-2).

R9-21-102. Applicability

With regard to the provision of behavioral health services or community services to clients under A.R.S. Title 36 Chapter 5, this Chapter shall apply to the Department and to all mental health agencies funded by or through, under contract or subcontract with, licensed by, certified by, approved by, registered with, or supervised by the Department, or receiving funds under Title XIX, to provide behavioral health services or community services. This Chapter shall not apply to the Arizona Department of Corrections.

Historical Note

Adopted under an exemption from A.R.S. Title 41, Chapter 6 pursuant to Laws 1992, Ch. 301, § 61, effective October 7, 1992; received in the Office of the Secretary of State October 14, 1992 (Supp. 92-4). Amended by exempt rulemaking at 9 A.A.R. 3296, effective June 30, 2003 (Supp. 03-2).

R9-21-103. Computation of Time

For any period of time prescribed or allowed by this Chapter, the time shall be calculated as follows:

1. The period of time shall not include the day of the act, event or default from which the designated period of time begins to run;

2. If the period of time is designated as calendar days, the period of time shall include each day after the day of the act, event or default from which the designated period of time begins to run;

3. If the period of time is not designated as calendar days:

a. If the period of time prescribed or allowed is less than 11 days, the period of time shall not include intermediate Saturdays, Sundays and legal holidays;

b. If the period of time is 11 days or more, the period of time shall include intermediate Saturdays, Sundays and legal holidays;

c. If the last day of the period of time is not a Saturday, Sunday, or legal holiday, the period of time shall include the last day of the period of time; and

d. If the last day of the period of time is a Saturday, Sunday, or legal holiday, the period of time shall extend until the end of the next day that is not a Saturday, Sunday or legal holiday.

Historical Note

Adopted under an exemption from A.R.S. Title 41, Chapter 6 pursuant to Laws 1992, Ch. 301, § 61, effective October 7, 1992; received in the Office of the Secretary of State October 14, 1992 (Supp. 92-4). Section repealed; new Section R9-21-103 renumbered from R9-21-104 and amended by exempt rulemaking at 9 A.A.R. 3296, effective June 30, 2003 (Supp. 03-2).

R9-21-104. Office of Human Rights; Human Rights Advocates

A. The director shall establish an Office of Human Rights for clients within the Department. The office shall have its own chief officer appointed by the director. The chief officer shall report directly to the director and shall be responsible for the management and control of the office, as well as the hiring, training, supervision, and coordination of all Department human rights advocates.

B. The chief officer shall appoint at least one human rights advocate for each 2,500 clients in each region. Each region shall have at least one human rights advocate. The chief officer shall appoint at least one human rights advocate for ASH. All clients shall have the right of access to a human rights advocate in order to understand, exercise, and protect their rights. The human rights advocate shall advocate on behalf of clients and shall assist clients in understanding and protecting their rights and obtaining needed services. The human rights advocate shall also assist clients in resolving appeals and grievances under Article 4 of this Chapter and shall coordinate and assist the human rights committees in performing their duties.

C. The human rights advocates shall be given access to all:

1. Clients; and

2. Client records from a service provider, regional authority, or the Department, except as prohibited by federal or state law.

D. Staff of inpatient facilities, regional authorities, and service providers shall cooperate with the advocate by providing relevant information, reports, investigations, and access to meetings, staff persons, and facilities except as prohibited by federal or state law and the client's right to privacy.

E. An agency director shall notify the Office of Human Rights and the applicable human rights committee of each client who needs special assistance.

F. The Office of Human Rights shall:

1. Maintain a list that contains the names of each client who needs special assistance and, if applicable, the name and address of the residential program providing behavioral services to the client; and

2. Provide each human rights committee with a list of all clients who need special assistance who reside in the respective jurisdiction of the human rights committee.

G. The Office of Human Rights shall promptly distribute to all appropriate human rights committees copies of all reports received according to this Chapter (e.g., reports regarding clients who need special assistance, allegations of mistreatment, denial of rights, restraint, and seclusion).

Historical Note

Adopted under an exemption from A.R.S. Title 41, Chapter 6 pursuant to Laws 1992, Ch. 301, § 61, effective October 7, 1992; received in the Office of the Secretary of State October 14, 1992 (Supp. 92-4). Former Section R9-21-104 renumbered to R9-21-103; new Section R9-21-104 renumbered from R9-21-105 and amended by exempt rulemaking at 9 A.A.R. 3296, effective June 30, 2003 (Supp. 03-2).

R9-21-105. Human Rights Committees

A. According to A.R.S. §§ 41-3803 and 41-3804, the Department shall establish human rights committees to provide independent oversight to ensure that the rights of clients and enrolled children are protected. The Department shall establish at least one human rights committee for each region and the Arizona State Hospital. Upon the establishment of a human rights committee, if more than 2,500 clients reside within a region, the Department shall establish additional human rights committees until there is one human rights committee for each 2,500 clients in a region.

B. Each human rights committee shall be composed of at least seven and not more than 15 members. At least two members of the committee shall be clients or former clients, at least two members shall be relatives of clients, two members shall be parents of enrolled children and at least three members shall have expertise in one of the following areas: psychology, law, medicine, education, special education, social work, or behavioral health services.

C. The director shall appoint the initial members to each regional committee and the human rights committee for the Arizona State Hospital. The Director shall appoint members to fill vacancies on a human rights committee, subject to the approval of the committee.

D. Each committee shall meet at least four times each year. Within three months of its formation, each committee shall establish written guidelines governing the committee's operations. These guidelines shall be consistent with A.R.S. §§ 41-3803 and 41-3804. The adoption and amendment of the committee's guidelines shall be by a majority vote of the committee and shall be submitted to the Director for approval.

E. No employee of or individual under contract with the Department, regional authority, or service provider may be a voting member of a committee.

F. If a member of a human rights committee or the human rights committee determines that a member has a conflict of interest regarding an agenda item, the member shall refrain from:

1. Participating in a discussion regarding the agenda item, and

2. Voting on the agenda item.

G. Each committee shall, within its respective jurisdiction, provide independent oversight and review of:

1. Allegations of illegal, dangerous, or inhumane treatment of clients and enrolled children;

2. Reports filed with the committee under R9-21-203 and R9-21-204 concerning the use of seclusion, restraint, abuse, neglect, exploitation, mistreatment, accidents, or injuries;

3. The provision of services to clients identified under R9-21-301 in need of special assistance

4. Violations of rights of clients and enrolled children and conditions requiring investigation under Article 4 of this Chapter;

5. Research in the field of mental health according to A.R.S. § 41-3804(E)(2); and

6. Any other issue affecting the human rights of clients and enrolled children.

H. Within its jurisdiction, each human rights committee shall, for a client who needs special assistance, and may, for other clients and enrolled children:

1. Make regular site visits to residential environments;

2. Meet with the client, including a client who needs special assistance, in residential environments to determine satisfaction of the clients with the residential environments; and

3. Inspect client records, including client records for clients who need special assistance, except as prohibited by federal or state law and a client's right to privacy.

I. A committee may request the services of a consultant or staff person to advise the committee on specific issues. The cost of the consultant or staff person shall be assumed by the Department or regional authority subject to the availability of funds specifically allocated for that purpose. A consultant or staff person may, in the sole discretion of the committee, be a member of another committee or an employee of the Department, regional authority, or service provider. No committee consultant or staff person shall vote or otherwise direct the committee's decisions.

J. Committee members and committee consultants and staff persons shall have access to client records according to A.R.S. §§ 36-509(13) and 41-3804(I). If a human rights committee's request for information or records is denied, the committee may request a review of the decision to deny the request according to A.R.S. § 41-3804(J). Nothing in this rule shall be construed to require the disclosure of records or information to the extent that such information is protected by A.R.S. § 36-445 et seq.

K. On the first day of the months of January, April, July, and October of each year, each committee shall issue a quarterly report summarizing its activities for the prior quarter, including any written objections to the Director according to A.R.S. § 41-3804(F), and make any recommendations for changes it believes the Department or regional authorities should implement. In addition, the committee may, as it deems appropriate, issue reports on specific problems or violations of client's rights. The report of a regional committee shall be delivered to the regional authority and the Division.

L. The Department shall provide training and support to human rights committees.

M. A human rights committee may request:

1. An investigation for a client according to Article 4 of this Chapter, or

2. A regional authority or the Arizona State Hospital, as applicable, to conduct an investigation for an enrolled child.

N. The regional authority or the Arizona State Hospital, as applicable, when requested by a human rights committee, shall conduct an investigation concerning:

1. A client as provided in Article 4 of this Chapter, and

2. An enrolled child.

O. A human rights committee shall submit an annual report of the human rights committee's activities and recommendations to the Director at the end of each calendar year according to A.R.S. § 41-3804(G).

Historical Note

Adopted under an exemption from A.R.S. Title 41, Chapter 6 pursuant to Laws 1992, Ch. 301, § 61, effective October 7, 1992; received in the Office of the Secretary of State October 14, 1992 (Supp. 92-4). Amended under an exemption from A.R.S. Title 41, Chapter 6 pursuant to Laws 1992, Ch. 301, § 61, effective September 30, 1993 (Supp. 93-3). Former Section R9-21-105 renumbered to R9-21-104; new Section R9-21-105 renumbered from R9-21-106 and amended by exempt rulemaking at 9 A.A.R. 3296, effective June 30, 2003 (Supp. 03-2).

R9-21-106. State Protection and Advocacy System

Staff of mental health agencies shall cooperate with the State Protection and Advocacy System in its investigations and advocacy for clients and shall provide the System access to clients, records and facilities to the extent permitted and required by federal law, 42 U.S.C.A. 10801-51. Nothing in this rule shall be construed to create an independent cause of action that does not already exist for the State Protection and Advocacy System either in state court or any administrative proceeding provided by these rules.

Historical Note

Adopted under an exemption from A.R.S. Title 41, Chapter 6 pursuant to Laws 1992, Ch. 301, § 61, effective October 7, 1992; received in the Office of the Secretary of State October 14, 1992 (Supp. 92-4). Amended under an exemption from A.R.S. Title 41, Chapter 6 pursuant to Laws 1992, Ch. 301, § 61, effective September 30, 1993 (Supp. 93-3). Amended by exempt rulemaking at 7 A.A.R. 3469, effective July 17, 2001 (Supp. 01-3). Former Section R9-21-106 renumbered to R9-21-105; new Section R9-21-106 renumbered from R9-21-107 by exempt rulemaking at 9 A.A.R. 3296, effective June 30, 2003 (Supp. 03-2).

R9-21-107. Renumbered

Historical Note

Adopted under an exemption from A.R.S. Title 41, Chapter 6 pursuant to Laws 1992, Ch. 301, § 61, effective October 7, 1992; received in the Office of the Secretary of State October 14, 1992 (Supp. 92-4). Renumbered to R9-21-106 by exempt rulemaking at 9 A.A.R. 3296, effective June 30, 2003 (Supp. 03-2).

ARTICLE 2. RIGHTS OF PERSONS WITH SERIOUS MENTAL ILLNESS

R9-21-201. Civil and Other Legal Rights

A. Clients shall have all rights accorded by applicable law, including but not limited to those prescribed in A.R.S. §§ 36-504 through 36-514 and in 9 A.A.C. 20. Any individual or agency providing behavioral health services or community services as defined in R9-21-101 shall not abridge these rights, including the following:

1. Those civil rights set forth in A.R.S. § 36-506;

2. The right to acquire and dispose of property, to execute instruments, to enter into contractual relationships, to hold professional or occupational or vehicle operator's licenses, unless the Client has been adjudicated incompetent or there has been a judicial order or finding that such client is unable to exercise the specific right or category of rights. In the case of a client adjudicated incompetent, these rights may be exercised by the client's guardian, in accordance with applicable law;

3. The right to be free from unlawful discrimination by the Department or by any mental health agency on the basis of race, creed, religion, sex, sexual preference, age, physical or mental handicap or degree of handicap; provided, however, classifications based on age, sex, category or degree of handicap shall not be considered discriminatory, if based on written criteria of client selection developed by a mental health agency and approved by the Department as necessary to the safe operation of the mental health agency and in the best interests of the clients involved;

4. The right to equal access to all existing behavioral health services, community services, and generic services provided by or through the state of Arizona;

5. The right to religious freedom and practice, without compulsion and according to the preference of the client;

6. The right to vote, unless under guardianship, including reasonable assistance when desired in registering and voting in a nonpartisan and noncoercive manner;

7. The right to communicate including:

a. The right to have reasonable access to a telephone and reasonable opportunities to make and receive confidential calls and to have assistance when desired and necessary to implement this right;

b. The unrestricted right to send and receive uncensored and unopened mail, to be provided with stationery and postage in reasonable amounts, and to assistance when desired and necessary to implement this right;

8. The right to be visited and visit with others, provided that reasonable restrictions may be placed on the time and place of the visit but only to protect the privacy of other clients or to avoid serious disruptions in the normal functioning of the mental health agency;

9. The right to associate with anyone of the client's choosing, to form associations, and to discuss as a group, with those responsible for the program, matters of general interest to the client, provided that these do not result in serious disruptions in the normal functioning of the mental health agency. Clients shall receive cooperation from the mental health agency if they desire to publicize and hold meetings and clients shall be entitled to invite visitors to attend and participate in such meetings, provided that they do not result in serious disruptions in the normal functioning of the mental health agency;

10. The right to privacy, including the right not to be fingerprinted and photographed without authorization, except as provided by A.R.S. § 36-507(2);

11. The right to be informed, in appropriate language and terms, of client rights;

12. The right to assert grievances with respect to infringement of these rights, including the right to have such grievances considered in a fair, timely, and impartial procedure, as set forth in Article 4 of these rules, and the right not to be retaliated against for filing a grievance.;

13. The right of access to a human rights advocate in order to understand, exercise, and protect a client's rights;

14. The right to be assisted by an attorney or designated representative of the client's own choice, including the right to meet in a private area at the program or facility with an attorney or designated representative. Nothing in this Section shall be construed to require the Department or any mental health agency to pay for the services of an attorney who consults with or represents a client;

15. The right to exercise all other rights, entitlements, privileges, immunities provided by law, and specifically those rights of consumers of behavioral health services or community services set forth in A.R.S. §§ 36-504 through 514;

16. The same civil rights as all other citizens of Arizona, including the right to marry and to obtain a divorce, to have a family, and to live in the community of their choice without constraints upon their independence, except those constraints to which all citizens are subject.

B. Nothing in this Article shall be interpreted to:

1. Give the power, right, or authority to any person or mental health agency to authorize sterilization, abortion, or psychosurgery with respect to any client, except as may otherwise be provided by law; or

2. Restrict the right of physicians, nurses, and emergency medical technicians to render emergency care or treatment in accordance with A.R.S. § 36-512; or

3. Construe this rule to confer constitutional or statutory rights not already present.

Historical Note

Adopted under an exemption from A.R.S. Title 41, Chapter 6 pursuant to Laws 1992, Ch. 301, § 61, effective October 7, 1992; received in the Office of the Secretary of State October 14, 1992 (Supp. 92-4). Amended under an exemption from A.R.S. Title 41, Chapter 6 pursuant to Laws 1992, Ch. 301, § 61, effective September 30, 1993 (Supp. 93-3). Amended by exempt rulemaking at 9 A.A.R. 3296, effective June 30, 2003 (Supp. 03-2).

R9-21-202. Right to Support and Treatment

A. A client has the following rights with respect to the client's support and treatment:

1. The right to behavioral health services or community services:

a. Under conditions that support the client's personal liberty and restrict personal liberty only as provided by law or in this Chapter;

b. From a flexible service system that responds to the client's needs by increasing, decreasing and changing services as needs change;

c. Provided in a way that:

i. Preserves the client's human dignity;

ii. Respects the client's individuality, abilities, needs, and aspirations without regard to the client's psychiatric condition;

iii. Encourages the client's self-determination, freedom of choice, and participation in treatment to the client's fullest capacity;

iv. Ensures the client's freedom from the discomfort, distress and deprivation that arise from an unresponsive and inhumane environment;

v. Protects and promotes the client's privacy, including an opportunity whenever possible to be provided clearly defined private living, sleeping and personal care spaces; and

vi. Maximizes integration of the client into the client's community through housing and residential services which are located in residential neighborhoods, rely as much as possible on generic support services to provide training and assistance in ordinary community experiences, and utilize specialized mental health programs that are situated in or near generic community services;

vii. Offers the client humane and adequate support and treatment that is responsive to the client's needs, recognizes that the client's needs may vary, and is capable of adjusting to the client's changing needs; and

d. That provide the client with an opportunity to:

i. Receive services that are adequate, appropriate, consistent with the client's individual needs, and least restrictive of the client's freedom;

ii. Receive treatment and services that are culturally sensitive in structure, process and content;

iii. Receive services on a voluntary basis to the maximum extent possible and entirely if possible;

iv. Live in the client's own home;

v. Undergo normal experiences, even though the experiences may entail an element of risk, unless the client's safety or well-being or that of others is unreasonably jeopardized; and

vi. Engage in activities and styles of living, consistent with the client's interests, which encourage and maintain the integration of the client into the community.

2. The right to ongoing participation in the planning of services as well as participation in the development and periodic revision of the individual service plan;

3. The right to be provided with a reasonable explanation of all aspects of one's condition and treatment;

4. The right to give informed consent to all behavioral health services and the right to refuse behavioral health services in accordance with A.R.S. §§ 36-512 and 36-513, except as provided for in A.R.S. §§ 36-520 through 36-544 and 13-3994;

5. The right not to participate in experimental treatment without voluntary, written informed consent; the right to appropriate protection associated with such participation; and the right and opportunity to revoke such consent;

6. The right to a humane treatment environment that affords protection from harm, appropriate privacy, and freedom from verbal or physical abuse;

7. The right to enjoy basic goods and services without threat of denial or delay. For residential service providers, these basic goods and services include at least the following:

a. A nutritionally sound diet of wholesome and tasteful food available at appropriate times and in as normal a manner as possible;

b. Arrangements for or provision of an adequate allowance of neat, clean, appropriate, and seasonable clothing that is individually chosen and owned;

c. Assistance in securing prompt and adequate medical care, including family planning services, through community medical facilities;

d. Opportunities for social contact in the client's home, work or schooling environments;

e. Opportunities for daily activities, recreation and physical exercise;

f. The opportunity to keep and use personal possessions; and

g. Access to individual storage space for personal possessions;

8. The right to be informed, in advance, of charges for services;

9. The right to a continuum of care in a unified and cohesive system of community services that is well integrated, facilitates the movement of clients among programs, and ensures continuity of care;

10. The right to a continuum of care that consists of, but is not limited to, clinical case management, outreach, housing and residential services, crisis intervention and resolution services, mobile crisis teams, vocational training and opportunities, day treatment, rehabilitation services, peer support, social support, recreation services, advocacy, family support services, outpatient counseling and treatment, transportation, and medication evaluation and maintenance;

11. The right to a continuum of care with programs that offer different levels of intensity of services in order to meet the individual needs of each client;

12. The right to appropriate mental health treatment, based on each client's individual and unique needs, and to those community services from which the client would reasonably benefit;

13. The right to community services provided in the most normal and least restrictive setting, according to the least restrictive means appropriate to the client's needs;

14. The right to clinical case management services and a case manager. The clinical team negotiates and oversees the provision of services and ensures the client's smooth transition with service providers and among agencies;

15. The right to participate in treatment decisions and in the development and implementation of the client's ISP, and the right to participate in choosing the type and location of services, consistent with the ISP;

16. The right to prompt consideration of discharge from an inpatient facility and the identification of the steps necessary to secure a client's discharge as part of an ISP;

17. The rights prescribed in Articles 3 and 4 of this Chapter, including the right to:

a. A written individual service plan;

b. Assert grievances; and

c. Be represented by a qualified advocate or other designated representative of the client's choosing in the development of the ISP and the inpatient treatment and discharge plan and in the grievance process, in order to understand, exercise and protect the client's rights.

B. Subsection (A) shall not be construed to confer constitutional or statutory rights not already present.

Historical Note

Adopted under an exemption from A.R.S. Title 41, Chapter 6 pursuant to Laws 1992, Ch. 301, § 61, effective October 7, 1992; received in the Office of the Secretary of State October 14, 1992 (Supp. 92-4). Amended by exempt rulemaking at 9 A.A.R. 3296, effective June 30, 2003 (Supp. 03-2).

R9-21-203. Protection from Abuse, Neglect, Exploitation, and Mistreatment

A. No mental health agency shall mistreat a client or permit the mistreatment of a client by staff subject to its direction. Mistreatment includes any intentional, reckless or negligent action or omission which exposes a client to a serious risk of physical or emotional harm. Mistreatment includes but is not limited to:

1. Abuse, neglect, or exploitation;

2. Corporal punishment;

3. Any other unreasonable use or degree of force or threat of force not necessary to protect the client or another person from bodily harm;

4. Infliction of mental or verbal abuse, such as screaming, ridicule, or name calling;

5. Incitement or encouragement of clients or others to mistreat a client;

6. Transfer or the threat of transfer of a client for punitive reasons;

7. Restraint or seclusion used as a means of coercion, discipline, convenience, or retaliation;

8. Any act in retaliation against a client for reporting any violation of the provisions of this Chapter to the Department; or

9. Commercial exploitation.

B. The following special sanctions shall be available to the Department, in addition to those set forth in 9 A.A.C. 10, Article 10 of its rules, to protect the interests of the client involved as well as other current and former clients of the mental health agency.

1. Mistreatment of a client by staff or persons subject to the direction of a mental health agency may be grounds for suspension or revocation of the license of the mental health agency or the provision of Departmental financial assistance, and, with respect to employees of the Department, grounds for disciplinary action, which may include dismissal.

2. Failure of an employee of the Department to report to the Department any instance of mistreatment within any mental health agency subject to this Chapter shall be grounds for disciplinary action, which may include dismissal.

3. Failure of an agency director to report client deaths and allegations of sexual and physical abuse to the Department and to comply with the procedures described in Article 4 of this Chapter for the processing and investigation of grievances and reports shall be grounds for suspension of the license of the mental health agency or the provision of Departmental financial assistance, and, with respect to a service provider directly operated by the Department, grounds for disciplinary action, which may include dismissal.

4. The agency director shall report all allegations of mistreatment and denial of rights to the Office of Human Rights and the regional authority for review and monitoring in accordance with R9-21-105.

C. An agency director shall report all incidents of abuse, neglect, or exploitation to the appropriate authorities as required by A.R.S. § 46-454 and shall document all such reports in the mental health agency's records.

D. Where an agency director has reasonable cause to believe that a felony relevant to the functioning of the program has been committed by staff persons subject to the agency's direction, a report shall be filed with the county attorney.

E. The identity of persons making reports of abuse, neglect, exploitation, or mistreatment shall not be disclosed by the agency director or by the Department, except as necessary to investigate the subject matter of the report.

Historical Note

Adopted under an exemption from A.R.S. Title 41, Chapter 6 pursuant to Laws 1992, Ch. 301, § 61, effective October 7, 1992; received in the Office of the Secretary of State October 14, 1992 (Supp. 92-4). Amended under an exemption from A.R.S. Title 41, Chapter 6 pursuant to Laws 1992, Ch. 301, § 61, effective September 30, 1993 (Supp. 93-3). Amended by exempt rulemaking at 9 A.A.R. 3296, effective June 30, 2003 (Supp. 03-2).

R9-21-204. Restraint and Seclusion

A. A mental health agency shall only use restraint or seclusion to the extent permitted by and in compliance with this Chapter, 9 A.A.C. 20, and other applicable federal or state law.

B. A mental health agency shall only use restraint or seclusion:

1. To ensure the safety of the client or another individual in an emergency safety situation;

2. After other available less restrictive methods to control the client's behavior have been tried and were unsuccessful;

3. Until the emergency safety situation ceases and the client's safety and the safety of others can be ensured, even if the restraint or seclusion order has not expired; and

4. In a manner that:

a. Prevents physical injury to the client,

b. Minimizes the client's physical discomfort and mental distress, and

c. Complies with the mental health agency's policies and procedures required in subsection (E) and with this Section.

C. A mental health agency shall not use restraint or seclusion as a means of coercion, discipline, convenience, or retaliation.

D. A service provider shall at all times have staff qualified according to 9 A.A.C. 20 on duty to provide:

1. Restraint and seclusion according to this Section, and

2. The behavioral health services the mental health agency is authorized to provide according to 9 A.A.C. 20.

E. A mental health agency shall develop and implement written policies and procedures for the use of restraint and seclusion that are consistent with this Section and other applicable federal or state law and include:

1. Methods of controlling behavior that may prevent the need for restraint or seclusion,

2. Appropriate techniques for placing a client in each type of restraint or seclusion; used at the mental health agency, and

3. Immediate release of a client during an emergency.

F. A mental health agency shall develop and implement a training program on the policies and procedures in subsection (E).

G. A mental health agency shall only use restraint or seclusion according to:

1. A written order given:

a. By a physician providing treatment to a client; or

b. If a physician providing treatment to a client is not present on the premises or on-call:

i. If the agency is licensed as a level 1 psychiatric acute hospital according to R9-20-102, by a physician or a nurse practitioner; or

ii. If the agency is licensed as a level 1 subacute agency or a level 1 RTC according to R9-20-102, by a medical practitioner;

2. An oral order given to a nurse by:

a. A physician providing treatment to a client, or

b. If a physician providing treatment to a client is not present on the premises or on-call:

i. If the agency is licensed as a level 1 psychiatric acute hospital according to R9-20-102, by a physician or a nurse practitioner; or

ii. If the agency is licensed as a level 1 sub-acute agency or a level 1 RTC according to R9-20-102, by a medical practitioner;

H. If a restraint or seclusion is used according to subsection (G)(2), the individual giving the order shall, at the time of the oral order in consultation with the nurse, determine whether, based upon the client's current and past medical, physical and psychiatric condition, it is clinically necessary for:

1. If the agency is licensed as a level 1 psychiatric acute hospital according to R9-20-102, a physician to examine the client as soon as possible and, if applicable, the physician shall examine the client as soon as possible; or

2. If the agency is licensed as a level 1 sub-acute agency or a level 1 RTC according to R9-20-102, a medical practitioner to examine the client as soon as possible and, if applicable, the medical practitioner shall examine the client as soon as possible.

I. An individual who gives an order for restraint or seclusion shall:

1. Order the least restrictive restraint or seclusion that may resolve the client's behavior that is creating the emergency safety situation, based upon consultation with a staff member at the agency;

2. Be available to the agency for consultation, at least by telephone, throughout the period of the restraint or seclusion;

3. Include the following information on the order:

a. The name of the individual ordering the restraint or seclusion,

b. The date and time that the restraint or seclusion was ordered,

c. The restraint or seclusion ordered,

d. The criteria for release from restraint or seclusion without an additional order, and

e. The maximum duration for the restraint or seclusion

4. If the order is for mechanical restraint or seclusion, limit the order to a period of time not to exceed three hours.

5. If the order is for a drug used as a restraint, limit the:

a. The dosage to that necessary to achieve the desired effect, and

b. Drug ordered to a drug other than a time-released drug designed to be effective for more than three hours; and

6. If the individual ordering the use of restraint or seclusion is not a physician providing treatment to the client:

a. After ordering the restraint or seclusion, consult with the physician providing treatment as soon as possible, and

b. Inform the physician providing treatment of the client's behavior that created the emergency safety situation and required the client to be restrained or placed in seclusion.

J. PRN orders shall not be used for any form of restraint or seclusion.

K. If an individual has not examined the client according to subsection (H), the following individual shall conduct a face-to-face assessment of a client's physical and psychological well-being within one hour after the initiation of restraint or seclusion:

1. For a behavioral health agency licensed according to R9-20-102 as a level 1 psychiatric acute hospital, a physician or nurse practitioner who is either on-site or on-call at the time the mental health agency initiates the restraint or seclusion; or

2. For a behavioral health agency licensed according to R9-20-102 as a level 1 RTC or a level 1 sub-acute agency a medical practitioner or a registered nurse with at least one year of full time behavioral health work experience, who is either on-site or on-call at the time the mental health agency initiates the restraint or seclusion.

L. A face-to-face assessment of a client according to subsection (K) shall include a determination of:

1. The client's physical and psychological status,

2. The client's behavior,

3. The appropriateness of the restraint or seclusion used,

4. Whether the emergency safety situation has passed, and

5. Any complication resulting from the restraint or seclusion used.

M. For each restraint or seclusion of a client, a mental health agency shall include in the client's record the order and any renewal order for the restraint or seclusion, and shall document in the client's record:

1. The nature of the restraint or seclusion;

2. The reason for the restraint or seclusion, including the facts and behaviors justifying it;

3. The types of less restrictive alternatives that were attempted and the reasons for the failure of the less restrictive alternatives;

4. The name of each individual authorizing the use of restraint or seclusion and each individual restraining or secluding a client or monitoring a client who is in restraint or seclusion;

5. The evaluation and assessment of the need for seclusion or restraint conducted by the individual who ordered the restraint or seclusion;

6. The determination and the reasons for the determination made according to subsection (H) above;

7. The specific and measurable criteria for client release from mechanical restraint or seclusion with documentation to support that the client was notified of the release criteria and the client's response;

8. The date and times the restraint or seclusion actually began and ended;

9. The time and results of the face-to-face assessment required in subsection (L);

10. For the monitoring of a client in restraint or seclusion required by subsection (P):

a. The time of the monitoring,

b. The name of the staff member who conducted the monitoring, and

c. The observations made by the staff member during the monitoring; and

11. The outcome of the restraint or seclusion.

N. If, at any time during a seclusion or restraint, a medical practitioner or registered nurse determines that the emergency which justified the seclusion or restraint has subsided, or if the required documentation reflects that the criteria for release have been met, the client shall be released and the order terminated. The client shall be released no later than the end of the period of time ordered for the restraint or seclusion, unless a the order for restraint or seclusion is renewed according to subsection (Q).

O. For any client in restraint, the individual ordering the restraint shall determine whether one-to-one supervision is clinically necessary and shall document the determination and the reasons for the determination in the client's record.

P. A mental health agency shall monitor a client in restraint or seclusion as follows:

1. The client shall be personally examined at least every 15 minutes for the purpose of ensuring the client's general comfort and safety and determining the client's need for food, fluid, bathing, and access to the toilet. Personal examinations shall be conducted by staff members with documented training in the appropriate use of restraint and seclusion and who are working under the supervision of a licensed physician, nurse practitioner or registered nurse.

2. A registered nurse shall personally examine the client every hour to assess the status of the client's mental and physical condition and to ensure the client's continued well-being.

3. If the client has any medical condition that may be adversely affected by the restraint or seclusion, the client shall be monitored every five minutes, until the medical condition resolves, if applicable.

4. If other clients have access to a client being restrained or secluded or, if the individual ordering the restraint or seclusion determines that one-to-one supervision is clinically necessary according to subsection (O), a staff member shall continuously supervise the client on a one-to-one basis.

5. If a mental health agency maintains a client in a mechanical restraint, a staff member shall loosen the mechanical restraints every 15 minutes.

6. Nutritious meals shall not be withheld from a client who is restrained or secluded, if mealtimes fall during the period of restraint. Staff shall supervise all meals provided to the client while in restraint or seclusion.

7. At least once every two hours, a client who is restrained or secluded shall be given the opportunity to use a toilet.

Q. An order for restraint or seclusion may be renewed as follows:

1. For the first renewal order, the order shall meet the requirements of subsection (G)(1) or (G)(2); and

2. For a renewal order subsequent to the first renewal order:

a. The individual in (G)(1) or (G)(2) shall personally examine the client before giving the renewal order, and

b. The order shall not permit the continuation of the restraint or seclusion for more than 12 consecutive hours unless the requirements of subsection (P) are met.

R. No restraint or seclusion shall continue for more than 12 consecutive hours without the review and approval by the medical director or designee of the mental health agency in consultation with the client and relevant staff to discuss and evaluate the needs of the client. The review and approval, if any, and the reasons justifying any continued restraint or seclusion shall be documented in the client's record.

S. If a client requires the repeated or continuous use of restraint or seclusion during a 24-hour period, a review process shall be initiated immediately and shall include the client and all relevant staff persons and clinical consultants who are available to evaluate the need for an alternative treatment setting and the needs of the client. The review and its findings and recommendations shall be documented in the client's record.

T. Whenever a client is subjected to extended or repeated orders for restraint or seclusion during a 30-day period, the medical director shall require a special meeting of the client's clinical team according to R9-21-314 to determine whether other treatment interventions would be useful and whether modifications of the ISP or ITDP are required.

U. As part of a mental health agency's quality assurance program, an audit will be conducted and a report filed with the agency's medical director within 24 hours, or the first working day, for every episode of the use of restraint or seclusion to ensure that the agency's use of seclusion or restraint is in full compliance with the rules set forth in this Article.

V. Not later than the tenth day of every month, the program director shall prepare and file with the Division and the Office of Human Rights a written report describing the use of any form of restraint or seclusion during the preceding month in the mental health agency or by any employees of the agency. In the case of an inpatient facility, the report shall also be filed with any patient or human rights committee for that facility.

W. The Department's human rights committee, the Office of Human Rights, and any applicable regional human rights committee shall review such reports to determine if there has been any inappropriate or unlawful use of restraint or seclusion and to determine if restraint or seclusion may be used in a more effective or appropriate fashion.

X. If any human rights committee or the Office of Human Rights determines that restraint or seclusion has been used in violation of any applicable law or rule, the committee or Office may take whatever action is appropriate, including investigating the matter itself or referring the matter to the Division for remedial action.

Historical Note

Adopted under an exemption from A.R.S. Title 41, Chapter 6 pursuant to Laws 1992, Ch. 301, § 61, effective October 7, 1992; received in the Office of the Secretary of State October 14, 1992 (Supp. 92-4). Amended under an exemption from A.R.S. Title 41, Chapter 6 pursuant to Laws 1992, Ch. 301, § 61, effective September 30, 1993 (Supp. 93-3). Amended by exempt rulemaking at 9 A.A.R. 3296, effective June 30, 2003 (Supp. 03-2).

R9-21-205. Labor

A. No client shall be required to perform labor which involves the essential operation and maintenance of the service provider or the regular care, treatment or supervision of other clients, provided however, that:

1. Only a residential service provider may require clients to perform activities related to maintaining their bedrooms, other personal areas, and their clothing and personal possessions in a neat and clean manner.

2. Clients may perform labor in accordance with a planned and supervised program of vocational and rehabilitation training as set forth in an ISP or ITDP developed according to Article 3 of this Chapter.

B. Any client may voluntarily perform any labor available.

C. The requirements of federal and state laws relating to wages, hours of work, workers' compensation and other labor standards shall be met with respect to all labor.

Historical Note

Adopted under an exemption from A.R.S. Title 41, Chapter 6 pursuant to Laws 1992, Ch. 301, § 61, effective October 7, 1992; received in the Office of the Secretary of State October 14, 1992 (Supp. 92-4). Amended by exempt rulemaking at 9 A.A.R. 3296, effective June 30, 2003 (Supp. 03-2).

R9-21-206. Competency and Consent

A. A client shall not be deemed incompetent to manage the client's affairs, to contract, to hold professional, occupational or vehicle operator's licenses, to make wills, to vote or to exercise any other civil or legal right solely by reason of admission to a mental health agency.

B. An applicant or client is presumed to be legally competent to conduct the client's personal and financial affairs, unless otherwise determined by a court in a guardianship or conservatorship proceeding.

C. Only an applicant or client who is competent may provide informed consent, authorization, or permission as required in this Chapter. A mental health agency shall use the following criteria to determine if an applicant or client is competent and the appropriateness of establishing or removing a guardianship, temporary guardianship, conservatorship, or guardianship ad litem for the client:

1. An applicant or client shall be determined to be in need of guardianship or conservatorship only if the applicant's or client's ability to make important decisions concerning the applicant or client or the applicant's or client's property is so limited that the absence of a person with legal authority to make such decisions for the applicant or client creates a serious risk to the applicant's or client's health, welfare or safety.

2. Although the capability of the applicant or client to make important decisions is the central factor in determining the need for guardianship, the capabilities of the applicant's or client's family, the applicant's or client's living circumstances, the probability that available treatment will improve the applicant's or client's ability to make decisions on the applicant's or client's behalf, and the availability and utility of nonjudicial alternatives to guardianships such as trusts, representative payees, citizen advocacy programs, or community support services should also be considered.

3. If the applicant or client has been determined to be incapable of making important decisions with regard to the applicant's or client's personal or financial affairs, and if nonjudicial, less restrictive alternatives such as trusts, representative payees, cosignatory bank accounts, and citizen advocates are inadequate to protect the applicant or client from a substantial and unreasonable risk to the applicant's or client's health, safety, welfare, or property, the applicant's or client's nearest living relatives shall be notified with an accompanying recommendation that a guardian or conservator be appointed.

4. If the applicant or client is capable of making important decisions concerning the applicant's or client's health, welfare, and property, either independently or through other less restrictive alternatives such as trusts, representative payees, cosignatory bank accounts, and citizen advocates, the applicant's or client's nearest living relative shall be notified with an accompanying recommendation that any existing guardian or conservator be removed.

5. If the client has been determined to require or no longer require assistance in the management of financial or personal affairs, and the nearest living relative cannot be found or is incapable of or not interested in caring for the client's interest, the mental health agency shall assist in the recruitment or removal of a trustee, representative payee, advocate, conservator, or guardian. Nothing in this Section shall be construed to require the Department or any regional authority or service provider to pay for the recruitment, appointment or removal of a trustee, representative payee, advocate, conservator, or guardian.

6. The assessment or periodic review shall identify the specific area or areas of the client's functioning that forms the basis of the recommendation for the appointment or removal of a guardian or conservator, such as an inability to respond appropriately to health problems or consent to medical care, or an inability to manage savings or routine expenses.

D. Mental health agencies shall devise and implement procedures to ensure that suspected improprieties of a guardian, conservator, trustee, representative payee, or other fiduciary are reported to the court or other appropriate authorities.

Historical Note

Adopted under an exemption from A.R.S. Title 41, Chapter 6 pursuant to Laws 1992, Ch. 301, § 61, effective October 7, 1992; received in the Office of the Secretary of State October 14, 1992 (Supp. 92-4). Amended by exempt rulemaking at 9 A.A.R. 3296, effective June 30, 2003 (Supp. 03-2).

R9-21-206.01. Informed Consent

A. Except in an emergency according to A.R.S. §§ 36-512 or 36-513 or R9-21-204, or a court order according to A.R.S. Title 36, Chapter 5, Articles 4 and 5, a mental health agency shall obtain written informed consent in at least the following circumstances:

1. Before providing a client a treatment with known risks or side effects, including:

a. Psychotropic medication,

b. Electro-convulsive therapy, or

c. Telemedicine;

2. Before having a client participate in research activities approved under Department rules or policy; and

3. Before admitting a client to any medical detoxification, inpatient facility, or residential program operated by a mental health agency.

B. The informed consent in subsection (A) shall be voluntary and shall be obtained from:

1. If the client is determined to be competent according to R9-21-206, the client; or

2. If a court of competent jurisdiction has adjudicated the client incompetent, the client's guardian.

C. If informed consent is required according to subsection (A), a medical practitioner or a registered nurse with at least one year of behavioral health experience shall, before obtaining the informed consent, provide a client or, if applicable, the client's guardian with the following information:

1. The client's diagnosis;

2. The nature of and procedures involved with the proposed treatment, the client's participation in a research activity, or the client's admission to a program operated by a mental health agency;

3. The intended outcome of the proposed treatment, the client's participation in a research activity, or the client's admission to a program operated by a mental health agency;

4. The risks, including any side effects, of the proposed treatment, the client's participation in a research activity, or the client's admission to a program operated by a mental health agency;

5. The risks of not proceeding with the proposed treatment, the client's participation in a research activity, or the client's admission to a program operated by a mental health agency;

6. The alternatives to the proposed treatment, the client's participation in a research activity, or the client's admission to a program operated by a mental health agency, particularly alternatives offering less risk or other adverse effects;

7. That any informed consent given may be withheld or revoked orally or in writing at any time, with no punitive action taken against the client;

8. The potential consequences of revoking the informed consent; and

9. A description of any clinical indications that might require suspension or termination of the proposed treatment, research activity, or program operated by a mental health agency.

D. A client or, if applicable, the client's guardian who gives informed consent for a treatment, participation in a research activity, or admission in a program operated by a mental health agency, shall give the informed consent by:

1. Signing and dating an acknowledgment that the client or, if applicable, the client's guardian has received the information in subsection (C) and gives informed consent to the proposed treatment, participation in a research activity, or admission of the client to the program operated by a mental health agency; or

2. If the informed consent is for use of psychotropic medication or telemedicine and the client or, if applicable the client's guardian, refuses to sign an acknowledgement according to subsection (D)(1), giving verbal informed consent.

E. If a client or, if applicable, a client's guardian gives verbal informed consent according to subsection (D)(2), a medical practitioner shall document in the client's record that:

1. The information in subsection (C) was given to the client or, if applicable, the client's guardian;

2. The client or, if applicable, the client's guardian refused to sign an acknowledgement according to subsection (D)(1); and

3. The client or, if applicable, the client's guardian gives informed consent to the use of the psychotropic medication or telemedicine.

F. A client or, if applicable, the client's guardian may revoke informed consent at any time orally or by submitting a written statement revoking the informed consent.

G. If informed consent is revoked according to subsection (F):

1. The treatment, the client's participation in a research activity, or the applicant's or client's admission to a program operated by a mental health agency shall be immediately discontinued, or

2. If abrupt discontinuation of a treatment poses an imminent risk to a client, the treatment shall be phased out to avoid any harmful effects.

H. If a client or, if applicable, the client's guardian needs assistance with revoking informed consent according to subsection (F), the client or, if applicable, the client's guardian shall receive the assistance.

Historical Note

New Section made by exempt rulemaking at 9 A.A.R. 3296, effective June 30, 2003 (Supp. 03-2).

R9-21-207. Medication

A. Medication shall only be administered with the informed consent of the client or Title 36 guardian. Information relating to common risks and side effects of the medication, the procedures to be taken to minimize such risks, and a description of any clinical indications that might require suspension or termination of the drug therapy shall be available to the client, guardian, if any, and the staff in every mental health agency. Such information shall be available to family members in accordance with A.R.S. §§ 36-504, 36-509, and 36-517.01.

B. All clients have a right to be free from unnecessary or excessive medication.

C. Medication shall not be used as punishment, for the convenience of the staff, or as a substitute for other behavioral health services and shall be given in the least amount medically necessary with particular emphasis placed on minimizing side effects which otherwise would interfere with aspects of treatment.

D. Medication administered by a mental health agency shall be prescribed by a licensed physician, certified physician assistant, or a licensed nurse practitioner.

1. Psychotropic medication shall be prescribed by:

a. A psychiatrist who is a licensed physician; or

b. A licensed nurse practitioner, certified physician assistant, or physician trained or experienced in the use of psychotropic medication, who has seen the client and is familiar with the client's medical history or, in an emergency, is at least familiar with the client's medical history.

2. Each client receiving psychotropic medication shall be seen monthly or as indicated in the client's ISP by a licensed nurse practitioner, certified physician's assistant or physician prescribing the medication, who shall note in the client's record:

a. The appropriateness of the current dosage,

b. All medication being taken by the client and the appropriateness of the mixture of medications,

c. Any signs of tardive dyskinesia or other side effects,

d. The reason for the use of the medication, and

e. The effectiveness of the medication.

3. When a client on psychotropic medication receives a yearly physical examination, the results of the examination shall be reviewed by the physician prescribing the medication. The physician shall note any adverse effects of the continued use of the prescribed psychotropic medication in the client's record.

4. Whenever a prescription for medication is written or changed, a notation of the medication, dosage, frequency of administration, and the reason why the medication was ordered or changed shall be entered in the client's record.

E. Self-administration of medication by clients shall be permitted unless otherwise restricted by the responsible physician or licensed nurse practitioner. Such clients shall be trained in self-administration of medication and, if necessary, shall be monitored by trained staff.

F. Drugs shall be stored under proper conditions of sanitation, temperature, light, moisture, ventilation, segregation and security.

G. PRN orders for medication shall not be given for a drug used as a restraint.

Historical Note

Adopted under an exemption from A.R.S. Title 41, Chapter 6 pursuant to Laws 1992, Ch. 301, § 61, effective October 7, 1992; received in the Office of the Secretary of State October 14, 1992 (Supp. 92-4). Amended under an exemption from A.R.S. Title 41, Chapter 6 pursuant to Laws 1992, Ch. 301, § 61, effective September 30, 1993 (Supp. 93-3). Amended by exempt rulemaking at 9 A.A.R. 3296, effective June 30, 2003 (Supp. 03-2).

R9-21-208. Property and Possessions

A. No mental health agency shall interfere with a client's right to acquire, retain and dispose of personal property, including the right to maintain an individual bank account, except where:

1. The client is under guardianship, conservatorship, or has a representative payee;

2. Otherwise ordered by court; or

3. A particular object, other than money or personal funds, poses an imminent threat of serious physical harm to the client or others. Any restriction on the client's control of property deemed to pose an imminent threat of serious physical harm shall be recorded in the client's record together with the reasons the particular object poses an imminent threat of serious physical harm to the client or others.

B. If a mental health agency, which offers assistance to its clients in managing their funds, takes possession or control of a client's funds at the request of the client, guardian, or by court order, the mental health agency shall issue a receipt to the client or guardian for each transaction involving such funds. If deposited funds in excess of $250 are held by the mental health agency, where the likelihood of the client's stay will exceed 30 days, an individual bank account or an amalgamated client trust account shall be maintained for the benefit of the client. All interest shall become the property of the client or the fair allocation of the interest in the case of an amalgamated client trust account. The mental health agency shall provide a bond to cover client funds held.

1. Unless a guardian, conservator, or representative payee has been appointed, the client shall have an unrestricted right to manage and spend deposited funds.

2. The mental health agency shall obtain prior written permission from the client, the guardian or conservator for any arrangement involving shared or delegated management responsibilities. The permission shall set forth the terms and conditions of the arrangement.

3. Where the mental health agency has shared or delegated management responsibilities, the mental health agency shall meet the following requirements:

a. Client funds shall not be applied to goods or services which the mental health agency is obligated by law or funded by contract to provide, except as permitted by the client fee schedule authorized by the Department;

b. The mental health agency and its staff shall have no direct or indirect ownership or survivorship interest in the funds;

c. Such arrangements shall be accompanied by a training program, documented in the ISP, to elimi