SENATE BILL NO. 202
AN ACT TO AMEND TITLE 16, CHAPTERS 22 AND 48, DELAWARE CODE RELATING TO SUBSTANCE ABUSE.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE (Two-thirds of all members elected to each house thereof concurring therein):
Section 1. Amend Chapter 48 of Title 16 of the Delaware Code by striking it in its entirety.
Section 2. Amend Chapter 22 of Title 16 of the Delaware Code by striking it in its entirety, and enacting in lieu thereof the following:
"CHAPTER 22. SUBSTANCE ABUSE TREATMENT ACT
§2201. Declaration of Policy.
Substance abuse is one of the greatest challenges facing our State, schools, workplaces, and families because it has destructive influences that pervade all facets of our society. Accordingly, it is the policy of this State to provide treatment to those who abuse substances such as alcohol, drugs or inhalants. Therefore, this chapter is designed to enable those engaged in substance abuse to receive appropriate care and treatment. Although voluntary treatment is preferred, this chapter also provides a mechanism for involuntary treatment in suitable cases.
§2202. Establishment of Office.
There is hereby established an Office of Substance Abuse Services within the Department of Health and Social Services, Division of Alcoholism, Drug Abuse and Mental Health. The establishment of the Office is not intended to contravene any authority for alcohol and drug treatment services vested in the Department of Services for Children, Youth and Their Families pursuant to 29 Del. C. Chapter 90.
For the purposes of this chapter, definitions of the following terms and phrases shall be as follows:
1. 'Administrator' means the individual(s) who have been appointed by the entity that operates a licensed treatment facility to manage its affairs and who will be its agent for service of process or orders of a court.
2. 'Court' unless otherwise identified, means the Superior Court of the State of Delaware, except where the person in need of treatment is under the age of 18 years. If the person in need of treatment is under the age of 18, and it is appropriate, court may then mean the Family Court of the State of Delaware.
3. 'Department' means the Department of Health and Social Services unless the usage indicates otherwise.
4. 'Designated transport personnel' means those personnel designated by the Secretary of the Department of Health and Social Services, in the case of adults, or the Secretary of the Department of Services for Children, Youth and Their Families, in the case of minors under the age of 18 years, to transport persons in need of treatment.
5. 'Division' means the Division of Alcoholism, Drug Abuse and Mental Health, Department of Health and Social Services or the Division of Child Mental Health Services as indicated by the usage.
6. 'Facility' or 'treatment facility' means an entity, other than a licensed hospital, that provides care, lodging or treatment to persons in need of treatment. A 'residential treatment facility' provides 24 hour, live-in treatment to persons in need of treatment. A treatment facility may have one or more 'treatment programs' which are distinct therapeutic service components that may also address different age populations. 'Facility' does not include the outpatient practice offices of licensed independent practitioners, including, but not limited to, physicians, psychologists, social workers or counselors.
7. 'Incompetent person' means a person who has been adjudged incompetent by an appropriate state court.
8. 'Office' means the Office of Substance Abuse Services within the Department of Health and Social Services.
9. 'Patient' means a person in need of treatment who is the subject of a petition for involuntary treatment or anyone engaged in substance abuse who is requesting voluntary treatment, or as permitted under this chapter, those individuals for whom treatment has been consented to by a parent, relative caregiver, legal guardian or legal custodian.
10. 'Patient Representative' means an individual or entity authorized to act on the patient's behalf by operation of law or express appointment by the patient.
11. 'Peace Officer' means any public officer authorized by law to make arrests in a criminal case.
12. 'Person in need of treatment' means an individual who engages in substance abuse as previously defined in this section to the extent that:
a. such use causes the person to pose an imminent risk of injury to self or others without treatment, or
b. otherwise substantially interferes with the individual's ability to provide self-care in an age-appropriate manner, as evidenced by a significant impairment of functioning in hydration, nutrition, self-protection or self-control, thereby posing a grave and immediate risk of serious harm to the individual's health and well being.
13. 'Physician' means an individual licensed to practice medicine in this State, or a physician employed by the Delaware Psychiatric Center, registered within the Medical Council of Delaware and certified by the Division as being qualified in the diagnosis and treatment of substance abuse; or any physician employed by the United States government within the State in the capacity of psychiatrist and certified by the Division as qualified in the diagnosis and treatment of substance abuse.
14. Secretary' means the Secretary of the Department of Health and Social Services unless the usage indicates otherwise.
15. 'Staff', means individuals with specific training in drug and alcohol assessment or treatment who are licensed by the State of Delaware as independent practitioners in the fields of Nursing, Social Work, Medicine, Psychology, Counseling or individuals otherwise certified as Drug and Alcohol counselors in a manner acceptable to the State or individuals otherwise permitted to practice as set out above.
16. 'Substance abuse' means the chronic, habitual, regular or recurrent use of alcohol, inhalants or controlled substances as identified in chapter 47 of this title.
17. 'Substance Evaluation Team' is staff in the substance abuse and mental health field charged with assisting other agencies in determination of the appropriate treatment modalities for patients referred.
18. 'Treatment' means clinical and related services rendered to a person who abuses alcohol, drugs or inhalants.
19. 'Treatment Team' means staff members who collectively provide clinical services to a person in need of treatment.
20. 'Working day' means all days other than Saturdays, Sundays and legal state and federal holidays.
§ 2204. Powers of the Office.
The Office of Substance Abuse Services as a component of the Department of Health and Social Services may, subject to the express provisions of other sections of this chapter:
1. Plan for, establish, amend and revise standards for treatment programs when necessary or desirable;
2. Make contracts necessary or incidental to the performance of its duties and the execution of its powers;
3. Solicit and accept for use any money, real property or personal property made by will or otherwise, and any grant of money, services or property from the federal government, the State or any political subdivision thereof or any private source, and do all things necessary to cooperate with the federal government or any of its agencies in making an application for any grants;
4. Administer or supervise the administration of the provisions relating to persons in need of treatment of any state plan submitted for federal funding pursuant to federal health, welfare or treatment legislation;
5. Coordinate its activities with the Department of Services for Children, Youth and Their Families and cooperate with alcohol and drug treatment programs in this and other states, and make contracts and other joint or cooperative arrangements with state, local or private agencies in this and other states to provide services to persons in need of treatment;
6. Keep records and engage in the gathering of relevant statistics;
7. Do other acts and things necessary to execute the authority expressly granted to it; and
8. Acquire, hold or dispose of real property or any interest therein, and construct, lease or otherwise provide treatment facilities for persons in need of treatment.
§ 2205. Duties of Office.
The Office of Substance Abuse Services as a component of the Department of Health and Social Services shall:
1. Cooperate with the Department of Public Safety and the Department of Correction to assist in developing and establishing programs to provide services for persons in need of treatment within the criminal justice system;
2. Cooperate with the Department of Education, Law enforcement officials, and other public and private agencies, to assist with the development and dissemination of substance abuse prevention materials for use at all levels of school education;
3. Work in partnership with the Department of Services for Children, Youth and Their Families in establishing, licensing and evaluating programs for the prevention and treatment of substance abuse among children and youth;
4. Organize and foster training programs for all persons engaged in providing services to persons in need of treatment;
5. In coordination with the Department of Services for Children, Youth and Their Families, specify uniform methods for keeping statistical information by public and private agencies, organizations and individuals; and collect and annually provide relevant statistical information, including at a minimum the number of persons treated, the most commonly used substances, age of the treatment population, nature of treatment, frequency of admission and readmission and frequency and duration of treatment;
6. Advise the Governor in the preparation of a comprehensive plan for providing services to persons in need of treatment and its inclusion into a state comprehensive health plan; the plan should consider diagnosis, treatment, rehabilitation and education in the areas of substance abuse and dependence and should be revised over time as deemed necessary. In matter related to minors, advisement will be done in coordination with the Department of Services for Children, Youth and Their Families;
7. Encourage hospitals and other health facilities to admit persons in need of treatment if the required treatment is within their scope of practice;
8. Encourage all health and disability insurance programs to include substance abuse as a covered illness;
9. Promote, develop, establish, coordinate and conduct through the Department or any approved agency, public or private, unified programs for education, prevention, diagnosis, research, treatment, aftercare, community referral and rehabilitation in the field of substance abuse and dependency and, to implement and administer such programs;
10. Promulgate rules and regulations with the approval of the Secretary for the implementation of the authority and responsibilities within this chapter and employ persons responsible for implementing the purposes of this chapter, except insofar as such authority is granted to the Department of Services for Children, Youth and Their Families in Title 29, Chapter 90 of this Code;
11. In coordination with the Department of Services for Children, Youth and Their Families, establish guidelines, and provide for the systematic and comprehensive evaluation of the effectiveness of various programs licensed by the Office;
12. Establish a Substance Evaluation Team to assist all other agencies in determination of the appropriate treatment modalities for patients referred.
§ 2206. Residential and non-residential facilities.
The Office of Substance Abuse Services, as a component of the Department of Health and Social Services, Division of Alcoholism, Drug Abuse and Mental Health, shall, subject to the express provisions of other sections under this chapter:
1. Have the authority to license all facilities to be used exclusively or partially for the treatment of persons in need of treatment upon application and under this chapter. These facilities may be operated as residential or non-residential facilities. The Department of Services for Children, Youth and Their Families will be consulted prior to adoption of regulations and standards applicable to facilities serving minors.
2. Establish procedures whereby persons who are in need of treatment may seek admission to these programs on a voluntary basis and provide a system to accept appropriate referrals from all components of the criminal justice system and provide assistance where necessary for security for such referrals.
3. Have the authority to contract with other governmental or private agencies for additional diagnostic and treatment facilities or programs. The Office is encouraged to establish these programs on a regional basis with emphasis on prevention and preventive education and broad community involvement.
4. Except as authorized in Section 2211 of this chapter, provide that no person who voluntarily enters a facility for persons in need of treatment shall be retained in such facilities or program against the person's will. Such voluntary admission shall not be used as evidence in any criminal prosecution.
5. Initiate and maintain programs which will include:
a. Prevention of substance abuse;
b. Residential treatment;
c. Non-residential treatment; and
d. Follow-up treatment.
§ 2207. Standards for public and private treatment facilities.
1. In cooperation with the Department of Services for Children, Youth and Their Families, the Office shall establish standards for treatment facilities that must be met for a treatment facility to be licensed as a public or private treatment facility.
2. In coordination with the Department of Services for Children, Youth and Their Families, the Office periodically shall inspect licensed public and private treatment facilities at least every two years.
3. The Office shall maintain a list of licensed public and private treatment facilities.
4. Each licensed public and private treatment facility shall file with the Office, on request, data, statistics, schedules and information the Office reasonably requires. A licensed public or private treatment facility that without good cause fails to furnish any data, statistics, schedules or information as requested or files fraudulent returns thereof may be removed from the list of licensed treatment facilities, as its license will be either revoked or suspended.
5. The Office may at times enter and inspect and examine the records and operations of any licensed public or private treatment facility to determine compliance with this chapter.
6. No action will be taken under this section by the Office without consultation with the Department for Children Youth and Their Families regarding the operation of treatment facilities for minors.
§ 2208. Licensing of Treatment Facility; Regulations.
1. The Secretary, upon recommendation from the Division, shall approve the licensure of entities applying to be substance abuse treatment facilities, and may designate certain facilities for treatment of individuals on an involuntary basis. Additionally, the Secretary may restrict, condition, limit and/or set the term of the license of a treatment facility as may be reasonable or prudent. In the case of treatment facilities for minors, the Secretary of the Department of Services for Children, Youth and Their Families, or designee, may designate certain facilities for the treatment of minors on a voluntary or involuntary basis.
2. The Secretary is authorized to promulgate regulations for licensing and develop standards for the proper operation of treatment facilities and conduct of any hearing that may be required so as to implement this chapter. The Secretary may refuse to renew, revoke, suspend, limit or restrict the license of a facility where the facility has been given 30 days notice of adverse action and an opportunity for a hearing. The Secretary shall not promulgate any such regulations or standards for facilities engaged in the treatment of minors without consulting the Department of Services for Children, Youth and Their Families. The Secretary may also delegate the authority to promulgate regulations and develop standards to the Department of Services for Children, Youth and Their Families.
3. The Secretary or his/her designee shall conduct licensing or other hearings in accord with applicable sections of Chapters 100 and 101 of Title 29.
4. The Secretary’s final decision on the licensing or sanctioning of a treatment facility or applicant may be judicially reviewed in accord with Chapter 101, Subchapter V of Title 29.
§ 2209. Violation of Licensing Requirement; Injunction.
1. Any organization that maintains, manages, or operates, or aids or abets another in maintaining, managing or operating a facility, knowingly without a valid license or outside of a facility’s proper designation, is guilty of a class A misdemeanor and subject to the penalties as set out in Title 11 Del. C. Ch. 42.
2. In addition to any other remedy, the Secretary through the Attorney General may commence proceedings in the Chancery Court of the State of Delaware to enjoin any violation of this chapter and may, in the case of a willful and wanton violation, be awarded the costs of prosecution, including a reasonable amount for attorney fees, if the Secretary prevails.
§ 2210. Voluntary treatment for substance abuse.
1. A person in need of treatment or anyone engaging in substance abuse may request voluntary treatment from a licensed treatment facility. If the applicant is an incompetent person or a minor under 14 years of age, a parent, legal custodian, relative caregiver or legal guardian shall make the request for voluntary treatment and give written consent for treatment.
2. If a minor is 14 years of age or over, then either the minor, or a parent, legal custodian, relative caregiver or legal guardian may give written consent to a treatment facility for voluntary treatment for non-residential treatment. In the case of residential treatment, consent to treatment shall be given only by a parent, custodian, relative caregiver or legal guardian. Consent so given by a minor 14 years of age or over shall, notwithstanding the minor's minority, be valid and fully effective for all purposes, regardless of whether such minor's substance abuse is subsequently medically confirmed, and shall be binding upon such minor, the minor's parents, custodian, relative caregiver and legal guardian as effectively as if the minor were of full legal age at the time of giving such written consent. Consent so given shall not be subject to later denial or disclaimer; and the consent of no other person or court shall be necessary for the treatment rendered such minor.
3. Subject to regulations adopted by the Secretary, or in the case of a treatment program for minors, the Secretary of the Department of Services for Children, Youth and Their Families, an administrator of a treatment facility may determine who shall be admitted for treatment. If a person is refused admission to a facility, the Division, subject to the rules adopted by the Secretary, shall refer the person to another facility for treatment if available and appropriate.
4. If a voluntary patient requests or attempts to leave a treatment facility against the advice of the treatment team and administrator of the facility, the facility may initiate involuntary treatment procedures as provided for under this chapter. If the patient is a minor or is incompetent, the request for discharge against advice shall be made by a parent, custodian, relative caregiver, legal guardian or other appropriate legal representative, and the provisions of this paragraph shall apply as if the patient had made the request.
§ 2211. Involuntary Treatment.
1. A person in need of treatment shall be involuntarily admitted to a licensed residential treatment facility or outpatient treatment program, upon a written request for involuntary treatment that provides a factual basis for the request by anyone with knowledge that an individual may be a person in need of treatment and the written certification by a physician that the individual is a person in need of treatment as provided for in this chapter. The request for involuntary treatment shall concisely provide the observations, circumstances, and knowledge of the requestor regarding the requestor’s belief that a particular individual is in need of treatment. The request shall also contain the written certificate of a physician stating that he or she has reviewed the request and examined the patient and concluded that in his or her medical opinion the particular individual is a person in need of treatment and is either incapable of or unwilling to consent to treatment. If the individual is incapable of consenting to treatment, the certificate shall state with particularity the physician’s findings regarding why the individual is incapable of providing voluntary informed consent to treatment. The refusal to undergo treatment does not in itself constitute evidence of lack of judgment as to the need for treatment.
2. Any peace officer or designated transport personnel may lawfully transport an individual whom they reasonably believe is a person in need of treatment, without the consent of said individual, to or from a hospital, physician’s office, or licensed treatment facility for the purpose of carrying out this section.
3. Upon admission of the person in need of treatment, the facility shall evaluate and treat the individual as medically necessary and appropriate for a period not to exceed two working days.
4. The State Treasurer shall pay sheriffs and deputy sheriffs for service as peace officers under this section at the rate of the state’s mileage reimbursement amount for each mile necessarily traveled and a custody fee of $25 for the first peace officer and $15 for each additional peace officer, and shall pay medical doctors for services under this section $15 for each case, unless the medical doctor is reimbursed under another public or private plan.
5. The administrator in charge of a licensed treatment facility shall refuse an application if the request for treatment or physician’s certificate fails to meet the requirements of this section.
§ 2212. Commitment; Judicial proceedings.
1. Not more than 2 working days after the date a patient is admitted to an licensed treatment facility or program under a request for involuntary treatment, the administrator of the treatment facility, through the Attorney General, shall file a petition for involuntary commitment to a licensed treatment facility, supported by affidavit with the Court, unless the patient is discharged or admitted on a voluntary basis. The petition shall state that the administrator, as petitioner, based upon an evaluation by a physician, reasonably and in good faith believes that the involuntary patient (who shall be named as respondent) is a person in need of treatment who should be continued as a patient at the facility pursuant to this chapter until the patient is determined no longer to be in need of treatment at the treatment facility or program. The petition shall also state that the involuntary patient has been advised of the patient's procedural and substantive rights under this chapter. A copy of supporting certificates by an examining physician shall be attached to the petition.
2. Upon the filing of a petition, the facility may continue to treat the patient as medically necessary and appropriate on an involuntary basis pending a judicial hearing on the petition.
3. The petition shall indicate the facility’s reasonable belief, based upon investigation, as to whether the involuntary patient is able to afford counsel and an independent expert witness.
§ 2213. Limitation on Involuntary Treatment.
Subject to chapters 50 and 51 of this title, no person shall be involuntarily admitted or committed to or confined as a patient at a residential treatment facility, and such facilities, other than general hospitals, shall not admit or confine as an involuntary patient any person, unless:
1. Such person is determined to be a person in need of treatment in accordance with the procedures of this chapter; and,
2. Said treatment facility has been specifically designated as an appropriate facility for the treatment of involuntary adult patients, by the Secretary of Health and Social Services and by the Department of Services for Children, Youth and Their Families for the treatment of involuntary minor patients.
§ 2214. Hearing on Petition; Notice; Decision; Review.
Upon the filing of the petition the court shall promptly:
1. Schedule a hearing to determine based on clear and convincing evidence whether the patient is a person in need of treatment and that cause exists for the involuntary treatment of the patient, and, if unable to afford counsel, appoint counsel to represent the involuntary patient. Such hearing shall be held as soon as practicable, but no later than 8 working days from the filing of the petition.
2. Direct that notice of the hearing and copies of pleadings be supplied to the involuntary patient and the patient's counsel. In the case of a minor, copies of the pleading will be supplied to the patient’s parents or legal guardian.
3. Enter such other orders as may be appropriate, including an order authorizing the continued involuntary treatment of the patient until further order of the court.
4. If the court determines after a hearing that the patient is not a person in need of treatment or that such patient does not need involuntary treatment, the patient shall be discharged in accord with the Court’s order. If the court determines that the patient is a person in need of treatment, who is unwilling to accept or incapable of accepting voluntary treatment, it may order continued treatment for an additional period not to exceed 30 days. Thereafter, the Court shall schedule an additional hearing within 30 days to review the need for continued involuntary treatment unless the Court is informed the patient is under voluntary treatment or has been appropriately discharged from treatment. If continued involuntary treatment is warranted beyond the thirty days, the Court shall hold hearings to determine the necessity for continued involuntary treatment at intervals of not more than 6 months. A patient involuntarily receiving treatment, if represented by counsel, may waive, orally or in writing, any hearing under this section. The waiver must be submitted in writing to the Court or be orally presented in open court.
5. The court for good cause may order that judicial proceedings under this chapter take place in the Superior Court or Family Court in a county other than the county in which the action was initiated.
§ 2215. Procedural rights of involuntary patients.
An individual whom the staff of a facility has determined to be a person in need of treatment will be provided:
1. Notice (including a written statement) of the factual grounds upon which the proposed treatment is predicated and the reasons for the necessity of involuntary treatment and confinement.
2. Judicial review and determination of:
(a) whether the involuntary patient’s confinement is based upon sufficient cause,
(b) whether the involuntary patient is a person in need of treatment, and
(c) whether a less restrictive placement such as non-residential treatment is more appropriate. Such hearings shall be without jury and not open to the public, shall be preceded by adequate notice to the involuntary patient, and the involuntary patient shall be entitled to be present at all such hearings.
3. Representation by counsel at all judicial proceedings, such counsel to be court appointed if the involuntary patient cannot afford to retain counsel; and to be examined by an independent licensed professional in the area of substance abuse and treatment and to have such persons testify as a witness on the patients behalf, such witness to be court appointed if the involuntary patient cannot afford to retain such witness.
4. Reasonable discovery, to summon and cross-examine witnesses, to present evidence on the person's own behalf and to avail the person to all other procedural rights afforded litigants in civil causes. The privilege against self-incrimination shall be applicable to all proceedings under this chapter and the patient’s testimony, if any, shall not otherwise be admissible in any criminal proceedings against the patient.
5. To have a full record made of the proceedings, including findings adequate for review. All records and pleadings shall remain confidential unless the court for good cause orders otherwise.
§ 2216. Discharge by the Facility.
Notwithstanding the pendency of the action or any order previously entered by the court, if at any time after the petition is filed the staff of the facility determines that the involuntary patient is no longer in need of involuntary treatment, the facility may so certify in writing and discharge the patient, and shall promptly notify the court of its discharge, and the court may dismiss the action.
§ 2217. Changing to Voluntary Status.
An involuntary patient is entitled to change his or her status to that of a voluntary patient, if a member of the staff of the facility certifies that:
1. the patient is reasonably capable of understanding the nature of the decision to change status and that
2. such a change is in the patient’s best interest. If such a change in status is challenged within 2 days by the patient’s next of kin or legal representative, the Court will schedule a hearing to finally determine the matter.
§ 2218. Enlargement of time.
Notwithstanding the above provisions of this chapter, except for the time to appeal, the Court may enlarge the time for performance for a reasonable period upon a showing of good cause.
§ 2219. Appeal; rules of procedure.
1. Any party to the proceedings may appeal an order of discharge or involuntary treatment to the Supreme Court within 30 days of the entry of such order. The appeal shall not operate as a stay of the order of disposition unless the court or the Supreme Court so directs.
2. The Superior Court and the Family Court may adopt such rules of procedure as may be required to implement the procedural requirements of this chapter.
§ 2220. Patient's rights.
It is the intent of the General Assembly, and the purpose of this section, to promote the interests and well-being of residential and non-residential patients of treatment facilities. It is declared to be the public policy of this State that the interests of the patient shall be protected by a declaration of a patient's rights, and by requiring that all facilities treat their patients in accordance with such rights, which, unless otherwise provided by state or federal law, shall include but not be limited to the following:
1. Every patient shall have the right to receive considerate, respectful, and appropriate care, treatment and services, in compliance with relevant federal and state law and regulations, recognizing each person's basic personal and property rights which include dignity and individuality.
2. Each patient or patient’s representative of such patient or resident shall, prior to or at the time of admission, receive a written statement of the services provided by the facility including those required to be offered on an "as needed" basis, and a statement of related charges for services not covered under Medicare or Medicaid, or not covered by the facility's basic per diem rate. Upon receiving such statement, the patient and the patient's representative shall sign a written receipt which must be retained by the facility in its files.
3. After admission, the facility shall submit to the patient and patient’s representative, on a timely basis not to exceed three calendar months, a written, itemized statement detailing in language comprehensible to the ordinary lay person the charges and expenses the patient incurred during the treatment period. The statement shall contain a description of specific services, equipment and supplies received and expenses incurred for each such item. The statement shall include an explanation of any items identified by code or by initials. The facility shall make reasonable efforts to communicate the contents of the individual written statement to persons who it has reason to believe cannot read the statement.
4. Each patient, or patient’s representative, shall receive from the attending or resident physician or staff of the facility complete and current information concerning the patient's diagnosis, treatment and prognosis in terms and language the patient can reasonably be expected to understand. The patient or patient’s representative, shall participate in the planning of the patient's medical treatment, including attendance at treatment plan meetings, be informed of the medical consequences of all medication and treatment alternatives and shall give prior written informed consent to participation in any experimental research after a complete disclosure of the goals, possible effects on the patient and whether or not the patient can expect any benefits or alleviation of the patient's condition.
5. The facility shall provide the name, address and telephone number of the primary staff person or physician responsible for the patient's care.
6. Each patient, shall receive respect and privacy in the patient's own medical care program. Case discussion, consultation, examination and treatment shall be confidential, and shall be conducted discreetly. In the patient's discretion, persons not directly involved in the patient's care shall not be permitted to be present during such discussions, consultations, examinations or treatment, except with the consent of the patient. Personal and medical records shall be treated confidentially, and shall not be made public without the consent of the patient, except such records as are needed for a patient's transfer to another health care institution or as required by law or third party payment contract. No personal or medical records shall be released to any person inside or outside the facility who has no demonstrable need for such records.
7. Every patient shall be free from chemical and physical restraints imposed for purposes of discipline and convenience, and not necessary to treat the patient's medical condition.
8. Every patient or patient’s representative shall receive from the administrator or staff of the facility a courteous, timely and reasonable response to requests, and the facility shall make prompt efforts to resolve grievances. Responses to requests and grievances shall be made in writing upon written request by the patient.
9. Every patient or patient’s representative shall be provided with information as to any relationship the facility has with other healthcare and related institutions and/or service providers, including, but not limited to, pharmacy and rehabilitation services, to the extent the patient is offered care and/or services from these related entities. Such information shall be provided in writing upon admission, and thereafter when additional services are offered.
10. Every patient shall receive reasonable continuity of care.
11. Every patient may send and shall receive mail promptly; and shall have access at any reasonable hour to a telephone where the patient may speak privately; and shall have access to writing instruments, stationary and postage.
12. Each patient has the right to manage personal financial affairs.
13. Every patient has the right, personally or through other persons or in combination with others, to exercise patient rights; to present grievances; to recommend changes in facility policies or services on behalf of oneself or others; to present complaints or petitions to the facility's staff or administrator, to the Division of Alcoholism, Drug Abuse and Mental Health, and if the patient is a minor under the age of 18, to the Department of Services for Children, Youth and Their Families, or to other persons or groups without fear of reprisal, restraint, interference, coercion or discrimination.
14. A patient shall not be required to perform services for the facility.
15. Every patient shall have the right to inspect all records pertaining to oneself, upon oral or written request. If a patient requests records to assist with preparation of any court hearing under this chapter, such records will be supplied on an expeditious basis.
16. All patients shall be fully informed, in language they can understand, of their rights and all rules and regulations governing patient conduct and their responsibilities during the stay at the facility. Every patient shall be directed to a prominent place within the facility where a listing of the Patient’s Rights are posted. The facility shall guarantee that a current list of Patient’s Rights are always posted in a highly visible and accessible place.
17. Every patient shall have the right to receive information from agencies acting as client advocates and be afforded the opportunity to contact those agencies without reprisal.
18. Every patient shall be free from verbal, physical or mental abuse, cruel and unusual punishment, involuntary seclusion, withholding of monetary allowance, withholding of food and deprivation of sleep.
19. Every patient has the right to participate in an ongoing program of activities designed to meet, in accordance with personal assessments and plan of care, the patient's interests and physical, mental and psychosocial well-being.
20. Every patient shall have the right to participate in social, religious and community activities that do not interfere with the patient's treatment plan, or the rights of other patients or residents.
21. Every patient shall have the right to request and receive the names and positions of staff members providing care to the patient.
22. Every patient shall have the right to request and receive an organizational chart outlining the facility's chain of command for purposes of making requests and asserting grievances.
23. Where a patient is a minor under the age of 18 years, and the patient did not consent to treatment under this chapter, then the patient’s rights shall devolve to a parent, legal custodian, relative caregiver or legal guardian, as appropriate.
24. A patient’s care and treatment shall be provided in a setting and under conditions which restrict the patient’s personal liberty only to the extent required by the patient’s treatment needs, applicable law, and judicial orders.
25. The rights described in this section are in addition to , and not in derogation of , any other constitutional, statutory, or regulatory rights.
§ 2221. Devolution of rights.
Where consistent with the nature of each right in § 2220 of this title, and unless otherwise provided by state or federal law, all of such rights, particularly as they pertain to a person adjudicated incompetent in accordance with state law, or a patient who is found physically or mentally incapable by the patient's own attending physician, or a patient who is unable to communicate with others, or a minor under the age of 18 years who does not consent to treatment under this chapter, shall devolve to the patient's next of kin, legal guardian, legal custodian, relative caregiver, parents, representative, sponsoring agency or representative payee (except where the facility itself is the representative payee) selected pursuant to § 205(j) of the Social Security Act [42 U.S.C. § 405(j)].
§ 2222. Immunity, Limitation of Liability.
Any peace officer, emergency medical technician, firefighter, ambulance attendant, physician, employee of the Division, administrator or staff of a treatment facility or other person acting under their supervision or assisting them, as well as the entities that may employ or direct the foregoing, acting or omitting to act within this chapter shall not be subject to any civil claim or civil legal proceeding of any nature, in law or equity, for damages of any nature or for any harm resulting from any act or proceeding, decision or determination undertaken, performed or recommended, unless such harm was intentionally or recklessly caused by the misconduct of the foregoing individuals.
§ 2223. Unwarranted confinement in a Substance Abuse Treatment Facility or denial of rights; penalties.
1. Any person that willingly causes, or conspires with or assists another to cause
a. the unwarranted involuntary confinement of any individual in a substance abuse treatment facility under this chapter, or
b. the denial to any individual of any of the rights accorded to said individual under this chapter shall be punished by a fine not exceeding $500 or imprisonment not exceeding 1 year, or both.
2. The Superior Court shall have jurisdiction of offenses under this section.
§ 2224. Reporting requirements.
1. Any employee of a facility or anyone who provides services to a patient of a facility on a regular or intermittent basis who has reasonable cause to believe that a patient or resident in a facility has been abused, mistreated, neglected or financially exploited shall immediately report such abuse, mistreatment, neglect or financial exploitation to the Department by oral and written communication. The written report shall be filed by the employee or service provider within 48 hours after the employee or service provider first gains knowledge of the abuse, mistreatment, neglect or financial exploitation.
2. Any person required by subsection (a) of this section to make an oral and a written report who fails to do so shall be liable for a civil penalty not to exceed $1,000 per violation.
3. In addition to those persons subject to subsection (a) of this section any other person may make such a report, if such persons have reasonable cause to believe that a patient or resident of a facility has been abused, mistreated, neglected or financially exploited.
4. Any individual who intentionally makes a false report under this subchapter shall be guilty of a class A misdemeanor.
5. Any correspondence or other written communication from a patient to the Department, the Attorney General's Office and/or a law enforcement agency shall, if delivered to or received by a facility, be promptly forwarded, unopened, by the facility or service provider to the agency to which it is written. Any correspondence or other written communication from the Department, the Attorney General's office and/or a law enforcement agency to a patient shall, if delivered to or received by the facility or other service provider, be promptly forwarded, unopened, by the facility or other service provider to such patient. Failure to comply with this section shall result in a civil penalty not to exceed $1,000 per violation."
Approved July 08, 2002