Current through Register Vol. 63, No. 9, September 1, 2024
(1) Each
individual shall be assured the same civil and human rights accorded to other
citizens, except as otherwise limited by a court, OHA, CMHP, or PSRB order.
These rights shall be assured unless expressly limited by a court in the case
of an individual who has been adjudicated incompetent and not restored to legal
capacity. The rights described in paragraphs (2) and (3) of this section are in
addition to and do not limit all other statutory and constitutional rights that
are afforded to citizens including, but not limited to, the right to vote,
marry, have or not have children, own and dispose property, enter into
contracts, and execute documents.
(2) A provider shall actively work to support
and ensure each individual's rights described in this rule are not limited or
infringed upon by the provider except where expressly allowed under these
rules.
(3) The provider shall
ensure that individuals receiving mental health services have the rights set
forth in ORS 430.210, unless otherwise
limited by court order, administrative rule, administrative order, or
statute.
(4) An individual also has
a right to the following:
(a) Adequate food,
shelter, and clothing;
(b) A
reasonable accommodation if, due to their disability, the housing and services
are not sufficiently accessible;
(c) Confidential communication including
receiving and opening personal mail, private visits with family members and
other guests, and access to a telephone with privacy for making and receiving
telephone calls, unless such access is legally restricted;
(d) Express sexuality in a socially
appropriate and consensual manner;
(e) Access to community resources including
recreation, religious services, agency services, employment, and day programs
unless such access is legally restricted;
(f) Be free from seclusion and restraint
except as outlined in OAR
309-035-0205.
(g) To review the program's policies and
procedures; and
(h) Not participate
in research without informed voluntary written consent.
(5) An individual also has the following HCBS
rights:
(a) Live under a legally enforceable
residency agreement in compliance with protections substantially equivalent to
landlord-tenant laws as described in this rule;
(b) Have visitors of the individual's
choosing at any time and the freedom to visit with guests within the common
areas of the setting and the individual's unit;
(c) The freedom and support to control the
individual's own schedule and activities including but not limited to accessing
the community without restriction;
(d) Have a lockable door in the individual's
unit that may be locked by the individual, and only appropriate program staff
have a key to access the unit;
(e)
A choice of roommates when sharing a unit;
(f) Furnish and decorate the individual's
unit according to the Residency Agreement;
(g) The freedom and support to have access to
food at any time; and
(h) Privacy
in the individual's unit.
(6) An SRTF is not required to maintain the
qualities or obligations identified in section (5) (b), (c), (d), (e) and (h).
The provider is not required to seek an individually-based limitation for any
modified right.
(7) A provider is
not required to comply with section (5) (a) of this rule when providing an
individual with crisis-respite services. The provider is required to document
crisis respite resident's rights, responsibilities, and complaint/grievance
processes. The provider is not required to seek an individually-based
limitation for such an individual to comply with these rules.
(8) A provider may modify or limit the rights
identified in sections (1), (3), and (5) of this rule when providing services
to an individual, who is placed with the provider by a court, OHA, CMHP, or
PSRB order under ORS chapters 161 or 426 The provider is not required to seek
an individually-based limitation for such an individual to comply with these
rules. The limitations required for safety or treatment reasons, or as required
by the supervising entity should be included in the individual's
person-centered service plan.
(9)
For the purpose of this section, these terms have the following meanings:
(a) "Fresh air" means the inflow of air from
outside the facility where the individual is receiving services. "Fresh air"
may be accessed through an open window or similar method as well as through
access to the outdoors;
(b)
"Outdoors" means an area with fresh air that is not completely enclosed
overhead. "Outdoors" may include a courtyard or similar area;
(c) If an individual requests access to fresh
air and the outdoors or the individual's treating health care provider
determines that fresh air or the outdoors would be beneficial to the
individual, the program in which the individual is receiving services shall
provide daily access to fresh air and the outdoors unless this access would
create a significant risk of harm to the individual or others;
(d) The determination whether a significant
risk of harm to the individual or others exists shall be made by the
individual's treating health care provider. The treating health care provider
may find that a significant risk of harm to the individual or others exists if:
(A) The individual's circumstances and
condition indicate an unreasonable risk of harm to the individual or others
that cannot be reasonably accommodated within existing programming should the
individual be allowed access to fresh air and the outdoors; or
(B) The program's existing physical setting
or existing staffing prevent the provision of access to fresh air and the
outdoors in a manner that maintains the safety of the individual or
others.
(e) If a
provider determines that its existing physical setting prevents the provision
of access to fresh air and the outdoors in a safe manner, the provider shall
make a good faith effort at the time of any significant renovation to the
physical setting that involves renovation of the unit or relocation of where
individuals are treated to include changes to the physical setting or location
that allows access to fresh air and the outdoors, so long as such changes do
not add an unreasonable amount to the cost of the renovation.
(10) The program shall have and
implement written policies and procedures that protect individuals' rights and
encourage and assist individuals to understand and exercise their rights. The
program shall post a listing of individual rights under these rules in a place
readily accessible to all individual s and visitors.
Statutory/Other Authority: ORS
413.042 &
443.450
Statutes/Other Implemented: ORS
413.032,
443.400 -
443.465 &
443.991
