Mental Health Rights

Chapter 166 of the Acts of 1997

AN ACT RELATIVE TO CERTAIN RIGHTS OF PERSONS WITH MENTAL ILLNESS.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:

SECTION 1. Section 23 of chapter 123 of the General Laws, as appearing in the 1996 Official Edition, is hereby amended by striking out the first two paragraphs and inserting in place thereof the following five paragraphs:-

This section sets forth the statutory rights of all persons regardless of age receiving services from any program or facility, or part thereof, operated by, licensed by or contracting with the department of mental health, including persons who are in state hospitals or community mental health centers or who are in residential programs or inpatient facilities operated by, licensed by or contracting with said department. Such persons may exercise the rights described in this section without harassment or reprisal, including reprisal in the form of denial of appropriate, available treatment. The rights contained herein shall be in addition to and not in derogation of any other statutory or constitutional rights accorded such persons.

Any such person shall have the following rights:

(a) reasonable access to a telephone to make and receive confidential telephone calls and to assistance when desired and necessary to implement such right; provided, that such calls do not constitute a criminal act or represent an unreasonable infringement of another person's right to make and receive telephone calls;

(b) to send and receive sealed, unopened, uncensored mail; provided, however, that the superintendent or director or designee of an inpatient facility may direct, for good cause and with documentation of specific facts in such person's record, that a particular person's mail be opened and inspected in front of such person, without it being read by staff, for the sole purpose of preventing the transmission of contraband. Writing materials and postage stamps in reasonable quantities shall be made available for use by such person. Reasonable assistance shall be provided to such person in writing, addressing and posting letters and other documents upon request;

(c) to receive visitors of such person's own choosing daily and in private, at reasonable times. Hours during which visitors may be received may be limited only to protect the privacy of other persons and to avoid serious disruptions in the normal functioning of the facility or program and shall be sufficiently flexible as to accommodate individual needs and desires of such person and the visitors of such person.

(d) to a humane psychological and physical environment. Each such person shall be provided living quarters and accommodations which afford privacy and security in resting, sleeping, dressing, bathing and personal hygiene, reading and writing and in toileting. Nothing in this section shall be construed to require individual sleeping quarters.

(e) to receive at any reasonable time as defined in department regulations, or refuse to receive, visits and telephone calls from a client's attorney or legal advocate, physician, psychologist, clergy member or social worker, even if not during normal visiting hours and regardless of whether such person initiated or requested the visit or telephone call. An attorney or legal advocate working under an attorney's supervision and who represents a client shall have access to the client and, with such client's consent, the client's record, the hospital staff responsible for the client's care and treatment and any meetings concerning treatment planning or discharge planning where the client would be or has the right to be present. Any program or facility, or part thereof, operated by, licensed by or contracting with the department shall ensure reasonable access by attorneys and legal advocates of the Massachusetts Mental Health Protection and Advocacy Project, the Mental Health Legal Advisors Committee, the committee for public counsel services and any other legal service agencies funded by the Massachusetts Legal Assistance Corporation under the provisions of chapter 221A, to provide free legal services. Upon admission, and upon request at any time thereafter, persons shall be provided with the name, address and telephone number of such organizations and shall be provided with reasonable assistance in contacting and receiving visits or telephone calls from attorneys or legal advocates from such organizations; provided, however, that the facility shall designate reasonable times for unsolicited visits and for the dissemination of educational materials to persons by such attorneys or legal advocates. The department shall promulgate rules and regulations further defining such access. Nothing in this paragraph shall be construed to limit the ability of attorneys or legal advocates to access clients records or staff as provided by any other state or federal law.

Any dispute or disagreement concerning the exercise of the aforementioned rights in clauses (a) to (e), inclusive, and the reasons therefor shall be documented with specific facts in the client's record and subject to timely appeal.

Any right set forth in clauses (a) and (c) may be temporarily suspended, but only for a person in an inpatient facility and only by the superintendent, director, acting superintendent or acting director of such facility upon such person; concluding, pursuant to standards and procedures set forth in department regulations that, based on experience of such person's exercise of such right, further such exercise of it in the immediate future would present a substantial risk of serious harm to such person or others and that less restrictive alternatives have either been tried and failed or would be futile to attempt. The suspension shall last no longer than the time necessary to prevent the harm and its imposition shall be documented with specific facts in such person's record.

A notice of the rights provided in this section shall be posted in appropriate and conspicuous places in the program or facility and shall be available to any such person upon request. The notice shall be in language understandable by such persons and translated for any such person who cannot read or understand English.

The department, after notice and public hearing pursuant to section 2 of chapter 30A, shall promulgate regulations to implement the provisions of this section.

SECTION 2. Said section 23 of said chapter 123, as so appearing, is hereby further amended by striking out, in lines 21 and 22, the words ", reasonable access to telephones to make and receive confidential calls".

Approved November 25, 1997.

Return to:
List of Laws passed in 1997 Session
General Court home page, or
Commonwealth of Massachusetts home page.

___________________________________________________

HAVE YOU EVER...

Been treated disrespectfully by a physician because you were mentally ill?
Been denied access to health or life insurance because you were mentally ill ?
Been dehumanized or abused in a mental hospital, or been forced to accept "treatment" against your will?
Been asked discriminatory questions about your psychiatric history on applications for housing, education, employment, or driver's license?
Been denied access to any of the above?
Had your plans to marry interfered with by the mental health system?
Lost custody of your children or been labeled an "unfit parent" solely because of a psychiatric history?
Been given medication without being told what it was for, what the possible short and long-term side effects are, or why you had to take it
Had the right to control your own finances taken away?

___________________________________________________

FACTS ON APPEALING A MEDICAID DECISION

CLIENTS CAN KEEP SERVICES DURING AN APPEAL

Medicaid recipients, who file requests for a fair hearing within 10 days of notice of a DMA denial, reduction, or modification of services, can receive aid pending appeal. The success of appeals and the ability to get aid pending appeal depend upon the cooperation of treating professionals.

WHO CAN GET AID PENDING APPEAL?
Any Medicaid recipient who files a timely request for a fair hearing.

WHAT IF THE PARTNERSHIP OR AN HMO ADMINISTRATOR DENIES, REDUCES, OR MODIFIES THE SERVICES?
Because DMA has delegated its authority to the Partnership and HMOs, denial by the latter entities constitutes denial by DMA.

WHAT IF THE PARTNERSHIP OR HMO ADMINISTRATOR DENIES, REDUCES, OR MODIFIES SERVICES AND THE PROVIDER DOESN'T OBJECT?
Medicaid regulations specify that any services that require prior authorization must be requested by the provider in order to trigger the right of aid pending appeal. If a provider agrees to a reduction of or restriction on services, the question is raised whether this requirement is met. In addition, if the provider agrees to the change in treatment, DMA will not send a notice to the client and the client will not be aware of her appeal rights. Advocates will argue that the financial ties that bind providers to HMOs and the Partnership are such that the failure of a provider to request a continuation of services is equivalent to a DMA denial. Nevertheless, it is the better practice for clinicians to note their objections to changes in services suggested by the HMO/Partnership.

WHEN MUST THE APPEAL BE FILED?
The Board of Hearings within the DMA or HMO must receive a written request for a fair hearing within 10 days of the mailing of the notice of a DMA decision to suspend, reduce, terminate, or restrict services. In those instances described above when notice of denial is not mailed, the request for aid pending appeal should be filed within 10 days of when the client is first notified of the change in services.

DOES THE APPEAL HAVE TO BE MADE TO DMA TO GET AID PENDING APPEAL?
No. DMA is requiring HMO clients to appeal first to the HMO in question. Partnership clients may appeal directly to the Board of Hearings, 2 Boylston St., Boston, MA 02116, fax (617) 521-6462. Wherever the appeal is initiated, DMA agrees that the client has the right to aid pending appeal. However, since MCOs are not used to providing services during an appeal process, clients and their advocates should be sure to specify that they are requesting "aid pending appeal."

WHAT ARE THE CHANCES OF A SUCCESSFUL APPEAL?

Of course, the odds of winning an appeal depend upon the facts of the case. However, those odds are much worse if the client's clinician does not support her appeal.

WHAT IF THE CLIENT LOSES THE APPEAL?

If the client loses the appeal, DMA can seek to recoup the costs of the services rendered during the appeal process. These costs are recouped from the client, not the provider. To date, DMA rarely pursues recoupment except in cases of criminal fraud.

BOTTOM LINE:

Clients have the right to request aid pending appeal any time their treatment plans are changed. Ethical clinicians should support a client's appeal by insisting on continuation of services.
If you or a family member have difficulty getting aid pending appeal, please call: Mental Health Legal Advisors Committee in Massachusetts (617) 338-2345 ext. 28 or (800) 342-9092