Skip to: Main content | Subnavigation | Quicklinks |

		Tuesday, February 9, 2010
DHS Home Page | Forms (eDocs) | County and Tribal Workers | A-Z Topics |		Advanced Search

About DHS     Aging     Partners and Providers     Children     Disabilities     Economic Supports     Health Care     Publications     Licensing

		Section 4 Consumer Rights Table of contents • 245B.04 Consumer Rights • Frequently asked questions • Sample form: rights restriction documentation 245B.04 Consumer Rights. Subdivision 1. License holder's responsibility for consumers' rights. The license holder must: (1) provide the consumer or the consumer's legal representative a copy of the consumer's rights on the day that services are initiated and an explanation of the rights in subdivisions 2 and 3 within five working days of service initiation. Reasonable accommodations shall be made by the license holder to provide this information in other formats as needed to facilitate understanding of the rights by the consumer and the consumer's legal representative, if any; (2) document the consumer's or the consumer's legal representative's receipt of a copy of the rights and an explanation of the rights; and (3) ensure the exercise and protection of the consumer's rights in the services provided by the license holder and authorized in the individual service plan. Subd. 2. Service-related rights. A consumer's service-related rights include the right to: (1) refuse or terminate services and be informed of the consequences of refusing or terminating services; (2) know, in advance, limits to the services available from the license holder; (3) know conditions and terms governing the provision of services, including those related to initiation and termination; (4) know what the charges are for services, regardless of who will be paying for the services, and be notified upon request of changes in those charges; (5) know, in advance, whether services are covered by insurance, government funding, or other sources, and be told of any charges the consumer or other private party may have to pay; and (6) receive licensed services from individuals who are competent and trained, who have professional certification or licensure, as required, and who meet additional qualifications identified in the individual service plan. Subd. 3. Protection-related rights. The consumer's protection-related rights include the right to: (1) have personal, financial, services, and medical information kept private, and be advised of the license holder's policies and procedures regarding disclosure of such information; (2) access records and recorded information; (3) be free from maltreatment; (4) be treated with courtesy and respect for the consumer's individuality, mode of communication, and culture, and receive respectful treatment of the consumer's property; (5) voice grievances, know the contact persons responsible for addressing problems and how to contact those persons; (6) any procedures for grievance or complaint resolution and the right to appeal under section 256.045 (Administrative and Judicial Review of Human Service Matters); (7) know the name and address of the state, county, or advocacy agency to contact for additional information or assistance; (8) assert these rights personally, or have them asserted by the consumer's family or legal representative, without retaliation; (9) give or withhold written informed consent to participate in any research or experimental treatment; (10) have daily, private access to and use of a non coin-operated telephone for local calls and long-distance calls made collect or paid for by the resident; (11) receive and send uncensored, unopened mail; (12) marital privacy for visits with the consumer's spouse and, if both are residents of the site, the right to share a bedroom and bed; (13) associate with other persons of the consumer's choice; (14) personal privacy; and (15) engage in chosen activities. Frequently asked questions Which consumer rights apply specifically to day training and habilitation programs? Regarding the right listed as #12, marital privacy, the reference is made to consumers that are residents of a site. Consumers do not reside at day training and habilitation sites; however the information about rights must be presented intact. All consumer rights documents used within DD programs must identify all of the areas of consumer rights described within the Consolidated Standards. Clarify the extent that consumer rights apply for SILS and In-home services. While consumer rights are clearly of vital importance, there are recognized limits to what is within the control of those license holders of semi-independent living and in-home supports, where the license holder does not control the physical environment and provides limited hours of direct contact. Assessment of the degree to which the license holder has met these requirements will be conducted within the scope of authorized services as noted within an ISP and/or county contract. Each license holder MUST comply with Minnesota Statutes, section 245B.04, subdivisions 1, 2, 3. As the license holder explains the rights to the individual/legal representative, they may offer a disclaimer as to which situations would not apply to the supports provided. For example, (12) marital privacy doesn’t apply at the DT & H. What about the interdisciplinary team in regards to consumer rights? What role does the team play? The IDT is an appropriate place to discuss the vulnerabilities of individuals and plans for ensuring health and safety. The legal representative retains the sole final decision making, as stated by the court, regarding any rights limitations. Can an individual’s team limit or restrict a person’ rights? Yes. When looking at the needs and strengths of the consumer, the individual’s team must evaluate the person’s abilities in the areas identified as rights (several of them would fall under the assessment conducted for the risk management plan). There may be occasions where a consumer may need limits or greater assistance to exercise his or her rights, or occasions where a consumer may be at greater risk for harm, or jeopardize a placement without some parameters around exercising individual rights. If the team intends to limit or restrict a person in any area(s) of consumer rights, the team must ensure that risk factors have been clearly identified and documented for that individual. The team must identify what steps can and are being taken to assist the person towards developing necessary skills to exercise rights in a responsible manner. Included within this discussion should be some criteria for determining when the restriction may no longer be required. It is important to remember that limiting rights for one individual may limit the rights for others (ex. locking a kitchen cupboard limits access to everyone in the home). This may affect the appropriateness of the decision. What are the documentation requirements for consumer rights? A license holder must document that the consumer or their legal representative received a copy of the rights on the first day of service initiation and that rights were explained within five working day of service initiation. For example, staff could document the completion of these tasks in progress notes or, obtain signatures from the affected parties. This could be accomplished through a group meeting. How should license holders deal with the “right to know charges for services” with fluctuation in the rates which consumers may pay? How often does the consumer need to be notified? This requirement was changed effective July 1, 2003, so that consumers’ and legal representatives need only be notified of changes in charges for services if they request this information. What happens when a consumer asks for staff of one gender over another? There may be situations where consumers have indicated a preference for having staff persons of the same gender providing their personal cares or other services, and this preference is identified in the ISP. License holders must try to accommodate those preferences where feasible and within legal parameters. It is acknowledged that many areas are currently experiencing a difficult time hiring and keeping employees. License holders need to work with the consumer/legal representative(s)/case manager, to discuss how they will address these particular issues. This may be one of the service limitations listed by license holders within the consumer rights section of the standards. A statement could be made that the license holder will try to accommodate the request, but may not always be successful. Define “legal representative” for persons under guardianship. In the case of guardianship, public or private, the "legal representative" is the person appointed in the court order. A guardian has the power to do what the court says the guardian can do. Under Minnesota law, the powers of the guardian may include one or more (or all) of the following: • To have custody of the person. • To decide where the person will live. • To make decisions about the person's personal property such as clothing, furniture and personal effects. • To give consent for medical care or treatment. • If there is no conservator of the estate, to make or to withhold approval of contracts for the ward. • If there is no conservator of the estate, to apply for government benefits or assistance for the ward. • To exercise general supervision over the ward. What general limits are there on a guardian's power? The basic rule is that a guardian's powers are limited to what the court authorizes the guardian to do. Under the old law, a guardian of the person had all powers that the law could authorize and a conservator of the person had only those powers the court specifically authorized. Under the new law, a guardian's power can be limited. The law says that the court should only give a guardian "those powers needed to provide for the needs of the incapacitated person." In another place, the law is even more specific about the court's responsibility to limit the power a guardian can use: The court shall grant to a guardian only those powers necessitated by the ward's limitations and demonstrated needs and, whenever feasible, make appointive and other orders that will encourage the development of the ward's maximum self-reliance and independence. Are there specific areas in which a guardian has limited powers? Yes. For instance: • A guardian may not consent to medical care for a ward "which violates the known conscientious, religious, or moral belief of the ward." • Court approval, after notice to "interested persons" is required for psychosurgery, electroshock, sterilization, or experimental treatment. • A guardian may not admit a ward to a regional treatment center except for outpatient services, for temporary care for not more than 90 days in any calendar year, or by going through the commitment process in court. • The guardian's general power to supervise the ward has to be used in a way that "limits civil rights and restricts personal freedom only to the extent necessary to provide needed care and services." • A guardian has to give notice to "interested persons" before disposing of a ward's personal property or personal effects. What duties does a guardian have? A guardian has the duty "to provide for the ward's care, comfort, and maintenance needs, including food, clothing, shelter, health care, social and recreational requirements, and, whenever appropriate, training, education, and habilitation or rehabilitation." The guardian has no duty to pay for these requirements out of personal funds. But the guardian does have the responsibility to meet these needs out of government benefits or services whenever possible, rather than the ward's estate. A guardian has the responsibility to take reasonable care of the ward's personal property and to seek appointment of a conservator of the estate if other property requires protection. Each year the guardian must make a report to the court that states: • The current mental, physical, and social condition of the person. • The living arrangements of each place the person lived during that year. • The medical, educational, vocational and other services provided the person. • The guardian's opinion of the adequacy of those services. • Recommendations about the need for continued guardianship. May a person under guardianship vote? Yes, unless the court order says that the ward does not retain the right to vote. The law used to say that a person under a guardianship of the person was not eligible to vote. The legislature changed that law by adding the requirement that the court order has to specifically say that the ward cannot vote. Can the guardian's actions be challenged? Yes, the guardian is under the control of the court "at all times and in all things." The statute specifically allows the ward or an "interested party" to petition the court to prevent or to seek a change of residence. Any "person interested in the ward's welfare" may petition the court to terminate or modify a guardianship.

Rights Restriction Documentation (Minnesota Statutes, section 245B.04, subdivisions 2 and 3)

Name: Proposed Implementation Date:

The right within 245B.04, subdivisions 2 or 3 that is to be restricted:

The rationale for the right restriction/risk factors are clearly identified:

The following steps can and are being taken to assist the person toward developing the necessary skills to exercise the rights in a responsible manner:

Criteria for determining when the restriction is no longer required:

I have participated in the establishment of this written information. Interdisciplinary team (IDT) approval via dated signatures: _________________________________ _____________ _____________________________ Legal Representative MM/DD/YYYY Relationship _________________________________ _____________ _____________________________ Case Manager/County Representative MM/DD/YYYY County/Agency _________________________________ _____________ _____________________________ Designated Coordinator-Residential MM/DD/YYYY Provider/Agency _________________________________ _____________ _____________________________ Designated Coordinator-Day Services MM/DD/YYYY Provider/Agency _________________________________ _____________ _____________________________ Other MM/DD/YYYY Position/Agency

	Related Pages
	•	Adoption
	•	Adult protection
	•	Chemical health
	•	Child care assistance
	•	Child protection
	•	Children’s mental health
	•	Disability services
	•	Foster care
	•	State Operated Services
	•	Licensing fact sheet

	Related Links
	•	License Minnesota
	•	Child Care Financial Aid
	•	Child Care Resource and Referral
	•	Department of Commerce
	•	Department of Health
	•	Department of Corrections
	•	Minnesota Statutes
	•	State Fire Marshal
	•	Minnesota Building Codes and Standards Division
	•	U.S. Consumer Product Safety Commission

© 2010 Minnesota Department of Human Services Online North Star is led by the Office of Enterprise Technology Updated: 5/6/08 11:04 AM | Accessibility | Terms/Policy | Contact DHS | Top of Page |