Code of Massachusetts Regulations
104 CMR - DEPARTMENT OF MENTAL HEALTH
Title 104 CMR 28.00 - Licensing and Operational Standards for Community Services
Subpart A - STANDARDS FOR COMMUNITY SERVICES
Section 28.08 - Possessions

Universal Citation: 104 CMR 28.00 MA Code of Regs 28.08

Current through Register 1531, September 27, 2024

(1) No provider shall interfere with the right of a person to acquire, retain and dispose of personally owned property unless:

(a) the person is a minor, under guardianship or conservatorship, or has had a representative payee appointed;

(b) in accordance with the provisions of 104 CMR 30.02: Client Funds in Community Programs or 104 CMR 30.07: Disposition of Personal Property Abandoned at Facilities or Programs;

(c) the person possesses contraband or any item prohibited by law;

(d) ordered by a court of competent jurisdiction; or

(e) possession of such property poses an imminent threat of serious physical harm to the person or others.

If the provider takes possession of a person's personally-owned property for the purposes of storage, the provider shall issue a receipt to the person and place the property in safekeeping.

(2) Any restriction on the possession of personally owned property shall be documented in the person's record, and reviewed and monitored by the Human Rights Officer and Human Rights Committee.

(3) Persons have the right to be free from unreasonable searches of their person or property.

(4) A provider shall ensure that its service establishes, maintains and operates pursuant to written policy, consistent with applicable law and the requirements of 104 CMR 28.08, regarding personal possessions and the implementation of searches and seizures at service sites. Persons shall be informed of the policy prior to their enrollment into the service. The policy shall require, at a minimum, except emergency circumstances, that persons and their legally authorized representative, if applicable:

(a) be informed of a search prior to the search;

(b) be provided an opportunity to consent to the search; and

(c) be present during the search of their property.

(5) All searches, including the reasons for the search, must be documented. If a search of a person's room or property needs to be performed in an emergency to avoid imminent risk of harm, and the person is not present during the search, the nature of the emergency and the reason the person is not present should be documented in the record. The person, the person's legally authorized representative, if applicable, and the program's human rights officer shall be notified of the emergency and search as soon afterwards as practicable and the notification must be documented.

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