Possessions (and Funds)

(1) No provider subject to 115 CMR 5.00 shall interfere with the right of an individual to acquire, retain, and dispose of personal possessions unless authorized by a guardian, conservator, or representative payee; the interference or restriction is part of a duly developed and reviewed ISP; ordered by the court; or possession poses an immediate threat of serious physical harm to the individual or other persons. In the event of restriction of possession by the provider on the grounds of imminent and serious physical harm, the provider shall be authorized to place the object in custodial safekeeping for the individual. (a) Any restriction on personal possessions or funds shall be accompanied by a training plan to eliminate the need for the restriction, documented in the individual's Individual Support Plan (ISP), and should be included in a PBSP, if clinically required. (b) Such restriction shall be accompanied by a training plan to eliminate the need for the restriction, as appropriate, and documented in the individual’s record. (2) Where an individual seeks or requires assistance in the management or expenditure of funds, the provider shall establish, or assist the individual to establish, an individual interest-bearing bank account under the individual's name. (a) All principal and interest shall be the property of the individual. (b) If the provider is a facility, it shall establish individual accounts in accordance with 115 CMR 3.08: Funds Belonging to Residents. (3) Unless a guardian, conservator, or representative payee has been appointed, the individual shall have an unrestricted right to manage and spend his or her funds; provided however, that if a determination is made pursuant to the development or review of the individual's ISP or, for the facilities, pursuant to an evaluation required by 115 CMR 3.08(5) that the individual lacks capacity to manage and spend all or a portion of his or her funds, the provider shall develop and implement a written plan to advise and assist the individual to manage and spend that portion of the individual's funds, in accordance with his or her needs, capabilities, interests, and desires. This written plan shall be a part of the individual's record and incorporated into the ISP. (a) The plan shall be the least restrictive possible to meet the individual's needs for assistance. The plan may include advice and training in the management and expenditure of funds, two-signature accounts, and representative payee accounts. (b) The provider shall obtain the agreement of the individual, if not under guardianship or conservatorship, or the guardian or conservator, if any, for shared or delegated management responsibilities. Where the individual is not under guardianship or conservatorship and is not capable of such agreement, the head of the provider may authorize a plan involving shared or delegated management responsibilities, where necessary and as appropriate. This provision shall not apply, however, where the head of the provider has reason to believe that shared or delegated management is not sufficient to protect the individual's assets or where the individual has cash or assets easily converted into cash in excess of $10,000. In such instances, the provisions of 115 CMR 5.07 shall apply. (c) Where the provider has shared or delegated management responsibilities, it shall meet the following requirements: 1. Individuals' funds shall not be applied to goods or services the provider is obligated by law or funded by contract to provide; 2. The provider or provider staff may not expend or borrow the funds of any individual for the use of anyone other than that individual; 3. The provider or provider staff shall have no direct or indirect ownership or survivor- ship interest in the funds; 4. A plan for shared or delegated management responsibilities shall be accompanied by a training plan, documented in the individual's record (and ISP), to eliminate the need for such assistance, unless it is established by clinical evaluation that the individual cannot learn how to manage or spend any portion of his or her funds, even with supports. 5. Provider staff shall not participate in arrangements for shared or delegated management of the individual's funds except as representatives of the provider; 6. A record shall be kept of every transaction, including the date, amount received or disbursed, the manner in which such funds were managed or expended, identification of involved parties, and receipts for expenditures exceeding $25; 7. The individual, guardian, other legal representative, or the Department may inspect such records and may demand an accounting at any time; 8. Funds held by the provider pursuant to a shared or delegated money management plan shall be treated as the property of the individual for the purpose of collecting charges for care. The individual and guardian (or conservator or trustee), if any, shall be informed of any possible charges for care before services begin and following any change in the cost of services. These charges shall be treated as any other significant debt of the individual, to be collected only after an appropriate explanation and written billing, including notice of means available to contest the charges for care. A copy of this billing shall be entered into the individual's record; 9. Any arrangements made to transfer an individual from one provider or location to another shall include provisions for transferring shared or delegated financial management responsibilities to the receiving provider or location. 10. The provider shall consider, as part of the ISP process, alternatives to involvement by persons affiliated with the provider. Such alternatives may include outside representative payees, trustees, conservators, and guardians; 11. The individual shall be informed of all proposed expenditures, and any expression of preference shall be honored if possible; and 12. Expenditures shall be made only for purposes which directly benefit the individual, in accordance with his or her interests and desires. (4) With the assistance of the Department, every provider subject to 115 CMR 5.00 shall develop procedures to assist individuals, guardians, trustees, and conservators in determining eligibility and applying for financial benefits. (5) Where a provider has shared or delegated money management responsibilities, it is required to have written procedures for implementing the Department's regulations and policies regarding individual funds and for maintaining accurate financial accounts of such funds. (6) In addition to 115 CMR 5.10, facilities shall be governed by 115 CMR 3.08: Funds Belonging to Residents, and to the extent that any conflict exists between the provisions of 115 CMR 5.10 and 115 CMR 3.08, the requirements of the latter shall apply.