Requirements Applicable to Protection and Advocacy of Individuals With Mental Illness; Notice of Proposed Rulemaking

DEPARTMENT OF HEALTH AND HUMAN SERVICES

Public Health Service

Substance Abuse and Mental Health Services Administration

42 CFR Part 51

RIN 0905-AD99

Requirements Applicable to Protection and Advocacy of Individuals

With Mental Illness; Notice of Proposed Rulemaking

agency: Substance Abuse and Mental Health Services Administration, PHS,

HHS.

action: Notice of proposed rulemaking.

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summary: The 1991 Protection and Advocacy for Individuals with Mental

Illness (PAIMI) Act reauthorization stipulated that the Secretary shall

promulgate regulations for the implementation of authorized activities

of the Protection and Advocacy (P&A) Systems. Thus, this rule proposes

regulations to implement Titles I and III of the PAIMI Act of 1986, as

amended and will govern the authorized activities carried out by the

Protection and Advocacy Systems to protect and advocate the rights of

individuals with mental illness. Authorized activities include

investigation of incidents of abuse and neglect and the pursuit of

legal, administrative and other appropriate remedies to ensure the

protection of the rights of individuals with mental illness in

facilities providing care or treatment. In accordance with the

provisions set forth, the system must be given access to records,

facilities and individuals with mental illness. Each designated system

must have a governing authority or board whose members broadly

represent and are knowledgeable about the needs of its clients. In

addition, the system must establish an advisory council to the PAIMI

program. PAIMI program priorities are developed by the governing

authority jointly with the advisory council.

The proposed regulations are intended to provide basic definitions

and to clarify the requirements of the PAIMI Act governing the

authorized activities and provisions to be carried out by the P&A

Systems to protect and advocate the rights of individuals with mental

illness.

The proposed regulations are not intended to preempt further

regulation in the field by States. Consistent with the established

principles of Constitutional law, the proposed Federal regulations will

supersede State law to the extent that there is a conflict.

dates: To ensure consideration, comments must be submitted on or before

February 13, 1995.

addresses: Please address comments to: Director, Center for Mental

Health Services, 5600 Fishers Lane, Room 15-105, Rockville, Maryland

20857.

Two weeks after the close of the comment period, comments and

letters addressing the proposed PAIMI program regulations, will be

available for public inspection in the Office of Consumer, Family, and

Public Information, 5600 Fishers Lane, Room 15-81, Rockville, Maryland

20857.

FOR FURTHER INFORMATION CONTACT:

Ms. Natalie Reatig, Chief, Protection and Advocacy for Individuals with

Mental Illness Program, (301) 443-3667 (Voice). This is not a toll-free

number. This document is available in accessible formats (cassette

tape, braille, large print or computer disk) upon request.

SUPPLEMENTARY INFORMATION:

Program History

In 1975, the Department of Health and Human Services (the

Department) established a program pursuant to Part C of the

Developmental Disabilities Assistance and Bill of Rights Act (DD Act)

[42 U.S.C. 6041, et seq.], providing formula grant support to the

Protection and Advocacy System (system) designated by each State to

protect and advocate the rights of persons with developmental

disabilities. This program (PADD) is presently administered by the

Administration on Developmental Disabilities (ADD).

Since 1986, the Department has provided additional formula grant

funds to the same State-designated systems to protect and advocate the

rights of individuals with mental illness pursuant to the Protection

and Advocacy for Individuals with Mental Illness (PAIMI) Act of 1986,

as amended [42 U.S.C. 10801 et seq.]. This program is administered by

the Center for Mental Health Service (CMHS) in the Substance Abuse and

Mental Health Services Administration (SAMHSA).

These proposed regulations govern activities carried out by the P&A

systems under the PAIMI Act to protect and advocate the rights of

individuals with mental illness. ADD will also be proposing to amend

its regulations governing system operations under the DD Act to

implement recent amendments and clarify certain requirements.

Description of PAIMI Program

Formula grants are made to the system designated by the State under

Part C of the DD Act to protect and advocate the rights of individuals

with mental illness. The system must have the authority to investigate

incidents of abuse and neglect and to pursue legal, administrative and

other appropriate remedies to ensure the protection of the rights of

individuals with mental illness in facilities providing care or

treatment. In accordance with the provisions set forth, the system must

be given access to records, facilities and individuals with mental

illness.

Each designated system must have a governing authority or board

whose members broadly represent and are knowledgeable about the needs

of its clients. In addition, the system must establish an advisory

council to the PAIMI program. PAIMI program priorities are developed by

the governing authority jointly with the advisory council.

A section-by-section discussion of the proposed rule follows:

Part 51--Requirements Applicable to the Protection and Advocacy for

Individuals With Mental Illness Program

Applicability

Section 51.1, as proposed, indicates that requirements are

applicable to State designated systems carrying out a protection and

advocacy program for individuals with mental illness funded under the

Act.

Definitions

Section 51.2 proposes definitions for terms not defined in the Act.

Definitions of ``ADD,'' ``Department,'' and ``Fiscal Year'' are the

same as the definitions in ADD regulations governing protection and

advocacy systems. The definitions of ``Governor'' and ``System'' have

the exact meaning as the definition in ADD regulations and differ only

slightly in phrasing. ``System'' refers to the P&A agency designated by

the Governor under the Developmental Disabilities Assistance and Bill

of Rights Act [42 U.S.C. 6041, 6042] which administers both DD and

PAIMPI programs. ``Program,'' as used in the regulations, denotes

activities involved with carrying out a protection and advocacy program

for individuals with mental illness funded under the Act. ``Act,''

``Center'' and ``Director'' refer to the Protection and Advocacy for

Individuals with Mental Illness Act, as amended, the Center for Mental

Health Services and its Director, respectively.

In keeping with Congressional intent, Senate Report (S. Rept.) 102-

114 on the Protection and Advocacy for Mentally Ill Individuals

Amendments Act of 1991 at 8, the regulations propose a definition of

``care or treatment.'' The proposed definition of ``care or treatment''

of an individual with mental illness is based on the survey format

Mental Health Service System Reports, ``Data Standards for Mental

Health Decision Support Systems,'' (``Data Standards'') used by the

National Institute of Mental Health and the MCHS. It was developed

through consensus in the mental health field. The definition of ``care

or treatment,'' operating in conjunction with the term ``facilities,''

which includes homeless shelters, jails and prisons, provides a broad

range of access for P&A systems to individuals with mental illness.

Facilities that render care or treatment under Sec. 102(4) of the Act

[42 U.S.C. 10802] are intended to mean those that provide overnight

care accompanied by services to prevent, identify, reduce or stabilize

mental illness or emotional impairment, (``Data Standards'' at 16).

The proposed definitions of ``public entity'' and ``private

entity'' distinguish between an organizational unit of a State or local

government or a quasi-public organization exercising one or more

governmental powers, and a nonprofit or for-profit corporation,

partnership or other nongovernmental organization.

The proposed definition of ``legal guardian, conservator, legal

representative'' to include individuals appointed and regularly

reviewed by a State court or agency empowered under State law to

appoint and review such officers is widely used throughout the program.

It originated in House Report (H. Rept.) 99-401 at 7 (accompanying H.R.

3492 preliminary to passage of Pub.L. 99-319, Nov. 21, 1985). It is

intended to include only those individuals who are given the legal

authority to make all decisions on behalf of an individual with mental

illness. Persons acting only as a representative payee or acting only

to handle financial matters, attorneys or others acting on behalf of an

individual with mental illness in individual legal matters, the State,

or officials responsible for the provision of health or mental health

services to the individual and other persons who are not legally

appointed are not included.

Subpart A--Basic Requirements

Formula for Determining Allotments

Section 51.3, as proposed, states that funds shall be apportioned

as prescribed by the Act.

Grants Administration Requirements

Section 51.4, as proposed, lists parts of Title 45 CFR which apply

to PAIMI programs funded under the Act.

Eligibility for Allotment

Section 51.5, as proposed, requires systems designated by the

Governor of a State under Part C of the DD Act [42 U.S.C. 6041, et

seq.] to provide assurances of compliance with the PAIMI Act and

regulations and to be operational in order to receive the State

allotment for a PAIMI program. In addition, the Governor must give a

written assurance that the allotment will be used to supplement and not

to supplant the level of non-Federal funds available in the State to

protect and advocate the rights of individuals with mental illness. If

the Governor provides this assurance at the same time as he/she

provides assurances to ADD under 45 CFR part 1386, the system shall

submit a copy of the Governor's assurance as part of its application

for PAIMI funds.

Use of Allotments

Section 51.6, as proposed, delineates certain impermissible uses of

grant funds. Allotments may not be used: (1) supplant the level of non-

Federal funds used for PAIMI activities; (2) support lobbying

activities to influence proposed or pending Federal legislation or

appropriations; or (3) produce or distribute written, audio or visual

materials intended or designed to support or defeat any candidate for

public office. However, program activities may include ``monitoring,

evaluating and commenting upon the development and implementation of

Federal, State, and local laws, regulations, State plans, budgets,

policies, programs, hearings, levies and community action which will

affect mentally ill persons [individuals with mental illness].'' [S.

Rept. 99-109 on Protection and Advocacy for Mentally Ill Persons Act of

1985 at 9 (July 25, 1985); see also, H. Rept. 99-401 at 9].

Section 51.6(d), as proposed, also clarifies that the restriction

in section 104(b)(1) of the Act [42 U.S.C. 10804(b)(1)], that a

designated State system may use no more than five percent of the annual

allotment for administrative expenses which includes State

administrative and monitoring costs but does not include costs of

training and technical assistance or the salaries, wages or benefits of

program staff. This will assure that Federal funds for eligible systems

will be used for protection and advocacy services, ``to the greatest

extent possible,'' in keeping with the legislative intent (S. Rept. 99-

109 at 12). No funds may be used by the State for administrative costs

where the eligible system is not a State agency (H. Rept. 99-401 at 9).

Section 51.6(e), as proposed, also implements restrictions found in

section 104(b)(2) of the Act [42 U.S.C. 10804(b)]. Under section

104(b)(2) of the Act [42 U.S.C. 10804(b)(2)], no more than ten percent

of an annual allotment may be used for providing technical assistance

and training. This may include a portion of the salaries and

administrative support of system or program staff who provide training

or technical assistance to other staff, contractors, or members of the

governing board or advisory council as a significant component of their

responsibilities.

Eligibility for Services

Under section 51.7, as proposed, protection and advocacy services

funded under the Act must be provided in accordance with program

priorities and policies established by the governing authority jointly

with the mental health advisory council. Such protection and advocacy

services may be provided to an individual with mental illness who is a

resident or inpatient in a facility providing care or treatment; who is

in the process of being admitted to a facility rendering care or

treatment, including persons being transported to such a facility; or,

who is involuntarily confined in a municipal detention facility for

reasons other than serving a sentence resulting from conviction for a

criminal offense. Federal funds may also be used to provide services to

an otherwise eligible individual who is a resident in a Federal

facility providing care or treatment, upon the request of that

individual, or that individual's legal guardian, conservator, or other

legal representative. Representatives of such individuals are accorded

all the rights and authority accorded other representatives of

residents of such activities pursuant to State and other Federal laws.

Activities in federal facilities are subject to the system's

appropriately established priorities and policies.

Protection and advocacy services may be provided to individuals

with regard to incidents which occurred while they were eligible under

the Act, even though the incident is reported to the P&A system after

their discharge from the facilities or after the expiration of their

90-day post discharge eligibility. This reflects the legislative

concern that appropriate discharge planning and placement take place in

that attempts to withdraw mental health care or treatment services from

individuals with mental illness without proper preparation can be as

harmful as neglectful isolation or inappropriate treatment (H. Rept.

99-401 at 8-9). This also reflects the legislative intent that the

Act's restriction on periods of coverage is not a limitation on the

time at which remedies may be sought nor a limitation on the time

during which actions may extend. Other laws respecting statutes of

limitations and requirements for settlement and adjudication are not

altered by the Act (H. Rept. 99-401 at 9).

In addition, allotments may be used to provide representation in

civil commitment proceedings where this is the means used to appeal or

otherwise challenge procedures which have subjected the individual to

abuse or neglect or otherwise violated his or her rights.

Annual Reports

Section 51.8, as proposed, describes the content and other

specifications of the annual report required by section 105(a)(7) of

the Act [42 U.S.C. 10805(a)(7)].

Financial Status Reports

Section 51.9, as proposed, requires that a grantee shall submit a

financial status report in accordance with 45 CFR 74.73

Remedial Actions

Section 51.10, as proposed, provides that noncompliance with the

provisions of the Act, regulations or other established grant policies

and procedures, including reporting requirements, may be considered a

material breach of the terms and conditions of the grant award which

can result in remedial actions.

Sections 51.11-51.20 Reserved

Subpart B--Program Administration and Priorities

Contracts for Program Operations

Section 51.21(a), as proposed, permits a system to contract with

one or more public or private nonprofit organizations to carry out all

or a portion of the program's protection and advocacy services as long

as the system institutes oversight and monitoring procedures. The

system and the provider must enter into a written agreement which

specifies the protection and advocacy services to be performed and

evidences that the provider can meet the terms and conditions of the

grant.

Eligible systems are encouraged under section 104(a)(2) of the Act

[42 U.S.C. 10804(a)(2)] to enter into program contracts with groups run

by individuals who are receiving or have received mental health

services or by family members of such individuals, as well as with

other organizations with relevant expertise. Such arrangements build on

the experience of these groups and foster cooperative efforts (S. Rept.

99-109 at 9-10).

Governing Authority

Section 51.22, as proposed, describes the composition of the

governing authority and its program oversight responsibilities. Under

section 105(c) of the Act [42 U.S.C. 10805(c)], a single governing

authority oversees both PAIMI and DD activities. Members of any multi-

member governing board which functions as the governing authority must

``broadly represent or [be] * * * knowledgeable about the needs of the

clients served by the system.'' To ensure this, the Act specifies that

members who are broadly representative include individuals who have

received or are receiving mental health services and family members of

such individuals. [See section 105(c)(1)(B) of the Act [42 U.S.C.

10805(c)(1)(B)]].

Further, the proposed regulation specifies that an individual or

family member who serves on a system's governing board in a

representative capacity must have direct experience with the needs of

clients served by the system. And, if the governing authority is a

nonprofit entity, the chairperson of the program's advisory council

must be a member. Other advisory council members are also eligible to

serve on the governing board. In addition, each system is required to

establish its own policies and procedures for the selection and service

of governing board members. These requirements implement 1988

amendments, found in section 105(c)(1)(B) of the Act [42 U.S.C.

10805(c)(1)(B)]. They are intended to ``ensure that protection and

advocacy systems, which historically served persons with developmental

disabilities, have added to their governing boards representatives of

the mental health community who are knowledgeable about the special

advocacy needs of mental ill individuals, including individuals who

have received or are receiving mental health services and family

members of such individuals.'' [S. Rept. 100-454 on Protection and

Advocacy for Mentally Ill Individuals Amendments Act of 1988, at 8

(Aug. 5, 1988)]. Finally, continuing efforts should be made to increase

the involvement of ethnic and racial minorities in program governance

and administration to assure that the program addresses the needs of

minority individuals with mental illness (H. Rept. 102-319 of the

Protection and Advocacy for Mentally Ill Individuals Amendments Act of

1991 at 8; S. Rept. 102-114 at 7).

Advisory Council

Section 51.23, as proposed, implements requirements, found in

section 105(a)(6) of the Act [42 U.S.C. 10805(a)(6)], for an advisory

council to advise the system on policies and priorities governing

protection and advocacy activities for individuals with mental illness.

The council membership should be broadly representative of persons and

groups who are knowledgeable about mental illness and the needs of the

clients served by the system (S. Rept. 99-109 at p. 10-11). At least 60

percent of the council members, including the chairperson, must be

individuals who have received or are receiving mental health services,

or family members of such individuals. Such persons, have a ``valuable

perspective on the advocacy needs of individuals with mental illness,

as well as on potential priority areas for the system'' (S. Rept. 100-

454 at 9).

The statutorily-based requirement that such persons constitute

three/fifths of the council membership is designed to assure that their

experience and knowledge will inform program priorities and policies.

In addition, continuing efforts should be made to increase the

involvement of ethnic and racial minorities in program governance and

administration to assure that the program addresses the needs of

minority individuals with mental illness (H. Rept. 102-319 at 8; S.

Rept. 102-114 at 7).

Each system shall, at least annually, provide the advisory council

with reports, materials and fiscal data to assist the members in

carrying out their responsibilities. It shall also establish policies

and procedures for reimbursing expenses incurred by council members,

including travel costs and costs of caring for family members with

mental illness or developmental disabilities during the activity

period, so as to enable those with limited financial resources to

participate fully in council activities.

Program Priorities

Section 51.24, as proposed, implements requirements, found in

sections 105(a)(6)(A) and 105(c)(2)(B) of the Act [42 U.S.C.

10805(a)(6)(A) and 10805(c)(2)(B)], mandating that the policies and

priorities which will govern the program be established by the

governing authority jointly with the advisory council. The governing

authority should engage the full and active participation of the

advisory council in this process (S. Rept. 100-454 at 8).

The annual priorities must specify the short-term goals and

objectives of the program and have measurable outcomes, as is done in

setting priorities for DD programs. Case selection criteria and the

availability of staff and monetary resources must be considered.

Attention should also be focused on the special problems and cultural

barriers that individuals with mental illness who have multiple

handicaps or who are members of racial or ethnic minorities, face in

obtaining mental health care and treatment.

Priorities are to be reviewed annually by the governing authority

and the advisory council and revised as necessary. Public comment is an

important part of this annual review. In each system, procedures should

be established which afford persons with mental illness and family

members or their representatives, as well as other interested persons,

a chance to comment, in writing or in person, on existing and proposed

priorities and policies prior to adoption or reconfirmation each year.

The annual program performance report shall include a statement of the

priorities and shall address any comments received from the public.

These requirements are similar to those established for DD programs (S.

Rept. 100-454 at 10).

Grievance Procedure

Section 51.25, as proposed, implements requirements, found in

section 105(a)(9) of the Act [42 U.S.C. 10805(a)(9)], for grievance

procedures that will address two classes of complaints: (1) complaints

of clients or prospective clients directed to whether or not eligible

individuals with mental illness in the State have full access to the

services of the system; (2) complaints of individuals who have received

or are receiving mental health services, their family members or

representatives of such individuals or family members directed to

whether or not the eligible system is operating in compliance with the

Act.

Each system is responsible for structuring procedures which satisfy

the statutory objectives of each class of complaint. Some systems have

established a bifurcated process; others have a single process with

some steps applying only to certain types of complaints. These or other

procedures may be developed as long as the process includes for each

class of complaint (1) an appeal to the governing authority from any

final staff review or determination; (2) annual, or more frequent

reports to the governing authority and the mental health advisory

council describing the content of the complaints received, the

grievances processed and the resolution; (3) identification of

individuals responsible for review; (4) a timetable to assure prompt

resolution; (5) a written response to the grievant; and (6) protection

of client confidentiality. Measures designed to protect client

confidentiality should ensure that a complaining client or family

member will not be entitled to confidential information concerning any

client without that client's consent, or, if the client is legally

incompetent or a minor, without the consent of the legal guardian or

representative.

Conflicts of Interest

Section 51.26, as proposed, recommends that each system establish

policies and procedures to avoid actual or apparent conflict of

interest involving clients, employees, contractors and subcontractors,

and members of the governing authority and advisory council. Those

policies and procedures should prohibit the participation of employees

and members of the governing authority or advisory council in matters

affecting particular contracts and subcontracts, reimbursement and

expenses and the employment or termination of staff if the covered

person or a relative could benefit financially or suffer a financial

loss. Public Health Service (PHS) Grants Policy Statement 8-18 lists

additional matters that should be covered by such policies.

Training

Section 51.27, as proposed, requires each system to provide

training for program staff and permits training of contractors,

governing board and advisory council members to enhance the development

and implementation of effective P&A services. A system may utilize

individuals who have received or are receiving mental health services

or family members to provide such training. Training should include

advocacy techniques such as negotiation and mediation which, when

appropriately used, avoid costly and time-consuming procedures (H.

Rept. 99-401 at 11; S. Rept. 99-109 at 12).

At a minimum, program staff should be trained to work with family

members of clients served by the program where the individual with

mental illness is a minor, legally competent and chooses to involve the

family member, or legally incompetent and the legal guardian,

conservator or other legal representative is a family member. In

addition, each system should also provide training to ensure that the

program works effectively with individuals with mental illness who are

members of racial and ethnic minorities. This training should enhance

cultural sensitivity and understanding on the part of staff, governing

authority and advisory council members (H. Rept. 102-319 at 8; Rept.

102-114 at 7).

A system may use its Federal allotment to support training,

including related travel expenses, for individuals with mental illness,

family members of such individuals, and other persons who are not

program staff, contractors, or board or council members, to increase

knowledge about protection and advocacy issues, to enhance leadership

capabilities, or to promote Federal-State and inter-State cooperation

on matters related to mental health system improvements. Decisions

concerning the selection of individuals to receive such training shall

be made in accordance with established policies, procedures and

priorities of the system. Expenditures for such training are subject to

the 10 percent limitation cited in section 51.6(e).

Section 51.28-Section 51.30 Reserved

Subpart C--Protection and Advocacy Services

Conduct of Protection and Advocacy Activities

Section 51.31, as proposed, directs each system to establish its

own policies and procedures to govern its advocacy activities. Many

programs have already developed such procedures and policies following

standards issued by the National Association of Protection and Advocacy

Systems (NAPAS).

Program advocacy policies and procedures should encourage staff to

maintain a presence in mental health care facilities. An on-site

presence allows staff to interact with current or potential recipients

of protection and advocacy services on a regular basis and enhances the

ability to communicate with facility personnel providing mental health

care and treatment as well as to obtain information and to review

records. Program policies should also encourage system advocates to

work with family members, social and community system workers and

others who provide care and treatment for potential and present

clients.

Resolving Disputes

Section 51.32, as proposed, clarifies that a system may pursue all

appropriate remedies on behalf of its clients consistent with Federal

and State law and the canons of professional ethics. Negotiation,

mediation, conciliation, and other administrative procedures, should be

developed and employed where such approaches offer the prospect of

prompt and economical resolution of disputes. Disputes between

individuals with mental illness and treatment professionals respecting

a particular course of treatment may be singularly suitable for

resolution through nonadversarial techniques--especially where these

methods facilitate the appropriate involvement of family members (S.

Rept. 102-114 at 6). However, although systems are encouraged to use

nonadversarial methods where feasible, the Act does not restrict client

rights to legal remedies otherwise available under Federal and State

laws (S. Rept. 99-109 at 11).

Section 51.33-Section 51.40 Reserved

Subpart D--Access to Records, Facilities and Individuals Access to

Records

Section 51.41, as proposed, implements section 105(a)(4) of the Act

[42 U.S.C. 10805(a)(4)] which affords a system access to all records of

an individual with mental illness when authorized by that individual or

his or her representative. A system also has the right to records when

it has probable cause to believe that an eligible individual has been

subject to abuse or neglect, and is mentally or physically unable to

provide authorization, and has no legal guardian, conservator or other

legal representative or the individual's guardian is the State.

Further, in accordance with section 105(a)(4)(C)(i) of the Act [42

U.S.C. 10805(a)(4)(C)(i)], the system also has the right to records if

the system has probable cause to believe that the individual's health

or safety is in serious and immediate jeopardy or with respect to whom

a complaint has been received, provided the individual's representative

has been contacted, offered assistance, and failed or refused to act. A

facility must cooperate by promptly furnishing the system the records

or the name and address of an individual's representative or otherwise

comply with section 51.43.

Authority to access records is essential to enable systems to

``effectively carry out their protection and advocacy and investigatory

responsibilities'' (S. Rept. 100-454 at 9); Mississippi Protection &

Advocacy System, Inc. v. Cotten, 929 F.2d 1054 (5th Cir. 1991). A

system must be given access to records based either on a complaint or

based on information obtained ``as a result of monitoring or other

activities (either of which result from a complaint or other

evidence).'' Section 105(a)(4)(B)(iii) of the Act [42 U.S.C.

10805(a)(4)(B)(iii)]. Monitoring or other investigate activity may be

initiated either based on a complaint from an allegedly abused or

neglected individual or from other persons, or based on other evidence

such as observations by system personnel, review of reports, newspaper

accounts, or ``hot-line'' calls. The definition of ``probable cause''

is modeled on the California statute, implementing the Act, California

Welfare & Institutions Code, Div. 4.7, section 4900(g). This prototype,

enacted in January 1992, follows conventional legal principles

measuring probable cause in terms of reasonable judgments made by

system personnel drawing, where appropriate, upon their training and

experience.

Section 51.41(c), as proposed, identifies some of the kinds of

information and records which shall be made available to a system under

this requirement. Such information includes: access to records obtained

in the course of providing intake, assessment, evaluation, care or

treatment services [paragraph (c)(1)]; to investigative reports of

incidents of abuse, neglect or injury occurring at the facility

[paragraph (c)(2)]; to discharge planning records [(c)(3)], as

specifically mandated under section 106(b)(3)(A) of the Act [42 U.S.C.

10806(b)(3)(A)]; and to safety standards and demographic and

statistical information [pargaraph (c)(5)].

In addition, both the Senate and House committee reports discussed

access to records of medical care evaluation and peer review committees

during their consideration of the 1991 amendments, and indicated that

the Act was not intended to preempt State law regarding disclosure of

peer review or medical review records (S. Rept. 102-114 at 5; H. Rept.

102-319 at 6). However, Congress recognizes that systems must have

access to ``supporting documents'' in order to ``carry out their

protection and advocacy and investigatory responsibilities'' (S. Rept.

100-454 at 9).

The proposed descriptions of information and records subject to

access requirements are largely modeled on access agreements negotiated

by various systems or imposed under court order. Provision for

inspection and copying of records at reasonable times and places,

subject to reimbursement of reasonable duplicating costs, [paragraph

(d)], is an essential element of any access requirement.

Access to Facilities and Residents

Section 51.42, as proposed, implements section 105(a) of the Act

[42 U.S.C. 10805(a)(3)] which affords systems access to facilities in

the State rendering care and treatment for individuals with mental

illness so that they can meet their investigatory, monitoring and

advocacy responsiblities. It is modeled on section 4902(b) of the

California statute referenced above. Provision is made for access at

all times necessary to investigate incidents of abuse or neglect when

an incident is reported to the system or when a system determines that

there is probable cause to believe an incident occurred or that there

is imminent danger of serious abuse or neglect.

Access to facilities and residents at reasonable times and

circumstances for other protection and advocacy services, such as

information and training (described in paragraph (b)) accords with the

legislative intent (S. Rept. 100-454 at 11). It largely follows the

California model and provisions in negotiated agreements and in court

orders.

Denial of Access

Section 51.43, as proposed, facilitates the speedy resolution of

disputes regarding access by requiring facilities to provide a written

statement of the reasons for a denial as well as the name and address

of any person whose authorization is allegedly required.

Access to Federal Facilities and Records

Section 51.44, as proposed, implements section 104(c) of the Act

[42 U.S.C. 10804(c)] which requires that systems be accorded the same

rights and authority accorded to other representatives of residents of

Federal facilities pursuant to State and Federal law.

Confidentiality of P&A System Client Records

Section 51.45, as proposed, establishes procedures to ensure the

protection of the system's client records and for access by authorized

Federal officials. The requirements in paragraph (a) are similar to

those in CMHS PAIMI policy guidelines implementing section 106(a) of

the Act [42 U.S.C. 10806(a)] and ADD regulations. Paragraph (b),

modeled on section 4903(d) of the California statute, makes it clear

that confidentiality restrictions do not impede a system from issuing

public reports that do not identify individuals or from reporting

information to cognizant investigative and enforcement agencies.

Disclosing Information Obtained From a Provider of Mental Health

Services

Section 51.46, as proposed, implements sections 106(b) (1) and (2)

of the Act [42 U.S.C. 10806(b) (1) and (2)] which spells out the steps

to be taken to resolve disputes about disclosure of material in records

to which the system has access under the act to the individual who

received the mental health services. The proposed regulation tracks the

statutorily mandated procedures for resolution of such disputes by

another mental health professional to be selected either by the

individual, by the individual's legal guardian, conservator or other

legal representative or by the system acting on behalf of an individual

whose guardian is the State or whose legal representative has not

selected a mental health professional to review the information within

a reasonable period of time after the denial of access. The legislative

objective is ``to restrict informed consent of clients/patients as

little as possible'' (H. Rept. 99-401 at 10).

Impact Analysis

Executive Order 12866

Executive Order 12866 requires that all regulations reflect

consideration of the costs and benefits they may generate, and that

they meet certain standards, such as avoiding unnecessary burden.

Regulations which are ``significant'' because of cost, adverse impacts

on the economy, inconsistency with other federal agency action, effects

on the federal budget, or their raising of novel legal or policy

issues, require special analysis. The Secretary has determined that

this proposal does not meet the Order's significance criteria.

Regulatory Flexibility Act of 1980

The proposed regulations have been reviewed in accordance with the

requirements of the Regulatory Flexibility Act of 1980 [5 U.S.C.

Chapter 6]. The Department has determined that compliance with the

proposed regulations would not have a significant economic impact on a

substantial number of small entities and, therefore, a Regulatory

Flexibility Analysis is not required.

Federal Supremacy

These proposed regulations are not intended to preempt further

regulation in the field by States. However, we are aware of at least

one State that has enacted legislation implementing the PAIMI Act.

Consistent with the established principles of Constitutional law, the

proposed Federal regulations will supersede State law to the extent

that there is a conflict.

Paperwork Reduction Act

The proposed rule contains information collection requirements

which are subject to review and approval by the Office of Management

and Budget (OMB) under the Paperwork Reduction Act of 1980. The form

and manner of information collection specified in Sec. 51.8 (Annual

Reports) have been previously reported to and approved by OMB under OMB

Approval No. 0930-0169. The title, description, and respondent

description of the information collection requirements are presented

below with an estimate of the annual reporting burden. Included in the

estimate is the time for reviewing instructions, searching existing

data sources, gathering and maintaining the data needed, and completing

and reviewing the collection of information.

Title: Protection and Advocacy of Individuals with Mental Illness--

42 CFR 51--NPRM

Description: Recipients of formula grants to provide protection and

advocacy services to individuals with mental illness are required by

law to report their activities and accomplishments annually, including

the number and types of persons served, the types of facilities

covered, and the manner in which the activities were undertaken. The

Advisory Council is required to submit a description of activities and

an assessment of the operations of the protection and advocacy system.

Description of Respondents: State or local governments, Non-profit

institutions.

Estimated Annual Reporting Burden:

----------------------------------------------------------------------------------------------------------------

Annual

Section Annual No. of respondents Annual Average burden burden

frequency per response hours

----------------------------------------------------------------------------------------------------------------

51.8(2)&(4)...................... 56--Program Performance Report... 1 35 hours........ 1,960

51.8(3).......................... 56--Advisory Council Report...... 1 10 hours........ 560

Total........................ ................................. ........... ................ 2,520*

----------------------------------------------------------------------------------------------------------------

*Burden hours are approved under OMB Approval No. 0930-0169

We have submitted a copy of this proposed rule to OMB for its

review of these information collections. Individuals or organizations

wishing to submit comments on the information requirements, estimated

burden or any other aspect of this collection of information should

direct such comments to the agency official designated for this purpose

whose name appears in this preamble, and to the Office of Information

and Regulatory Affairs, OMB, New Executive Office Building (Room

10235), 725 17th Street N.W., Washington, DC 20503 ATTN: SAMHSA Desk

Officer.

Smoke Free Workplace

Public Law 103-229 enacted on March 31, 1994 prohibits smoking in

certain facilities in which minors will be present. The Department of

Health and Human Services is now preparing to implement the provisions

of the law. Until those implementation plans are in place, PHS

continues to strongly encourage all grant recipients to provide a

smoke-free workplace and promote the non-use of all tobacco products.

List of Subjects in 42 CFR Part 51

Administrative practice and procedure, Grant programs--health

programs, Grant programs--social programs, Health records, Mental

health programs, Privacy, Reporting and recordkeeping requirements.

Catalogue of Federal Domestic Assistance

Catalogue of Federal Domestic Assistance (CFDA) number programs

affected by this proposed rule are: 93.138 Protection and Advocacy for

Individuals with Mental Illness.

Dated: September 16, 1994.

Philip R. Lee,

Assistant Secretary for Health.

Approved: December 5, 1994.

Donna E. Shalala,

Secretary.

Accordingly, it is proposed to add part 51 to title 42 of the Code

of Federal Regulations to read as set forth below.

PART 51--REQUIREMENTS APPLICABLE TO THE PROTECTION AND ADVOCACY FOR

INDIVIDUALS WITH MENTAL ILLNESS PROGRAM

Sec.

51.1 Applicability.

51.2 Definitions.

Subpart A--Basic Requirements

51.3 Formula for determining allotments.

51.4 Grants administration requirements.

51.5 Eligibility for allotment.

51.6 Use of allotments.

51.7 Eligibility for protection and advocacy services.

51.8 Annual reports.

51.9 Financial status reports.

51.10 Remedial actions.

51.11-51.20 [Reserved]

Subpart B--Program Administration and Priorities

51.21 Contracts for program operations.

51.22 Governing authority.

51.23 Advisory council.

51.24 Program priorities.

51.25 Grievance procedure.

51.26 Conflicts of interest.

51.27 Training.

51.28-51.30 [Reserved]

Subpart C--Protection and Advocacy Services

51.31 Conduct of protection and advocacy activities.

51.32 Resolving disputes.

51.33-51.40 [Reserved]

Subpart D--Access to Records, Facilities and Individuals

51.41 Access to records.

51.42 Access to facilities and residents.

51.43 Denial of access.

51.44 Access to Federal facilities and records.

51.45 Confidentiality of protection and advocacy system client

records.

51.46 Disclosing information obtained from a provider of mental

health services.

Authority: Protection and Advocacy for Individuals with Mental

Illness Act of 1986, as amended 42 U.S.C. Sec. 10801 et seq.

Sec. 51.1 Applicability.

The provisions of this part apply to recipients of Federal

assistance under the Protection and Advocacy for Individuals with

Mental Illness Act of 1986, as amended [42 U.S.C. 10801 et seq.].

Sec. 51.2 Definitions.

In addition to the definitions in section 102 of the Act, as

amended [42 U.S.C. 10802] the following definitions apply:

Act means the Protection and Advocacy for Individuals with Mental

Illness Act of 1986, as amended [42 U.S.C. 10801 et seq.].

ADD means the Administration on Developmental Disabilities within

the Administration for Children and Families.

Care or Treatment means services provided to prevent, identify,

reduce or stabilize mental illness or emotional impairment such as

mental health screening, evaluation, counseling, biomedical, behavioral

and psycho-therapies, supportive or other adjunctive therapies,

medication supervision, special education and rehabilitation.

Center or CMHS means the Center for Mental Health Services in the

Substance Abuse and Mental Health Services Administration.

Department or HHS means the U.S. Department of Health and Human

Services.

Director means the Director of the Center for Mental Health

Services, Substance Abuse and Mental Health Services Administration, or

his or her designee.

Fiscal Year means the Federal fiscal year (October 1--September 30)

unless other specified.

Governor means the chief executive officer of the State or

Territory, or his or her designee, who has been formally designated to

act for the Governor in carrying out the requirements of the Act and

these regulations.

Legal guardian, conservator, and legal representative all mean

individuals appointed and regularly reviewed by a State court or agency

empowered under State law to appoint and review such officers. It does

not include persons acting only as a representative payee, persons

acting only to handle financial payments, attorneys or persons acting

on behalf of an individual with mental illness only in individual legal

matters, the State, or officials responsible for the provision of

health or mental health services to an individual with mental illness.

Private Entity means a nonprofit or for-profit corporation,

partnership or other non-governmental organization.

Program means a program for protection and advocacy for individuals

with mental illness that meets the requirements of the Act.

Public Entity means an organizational unit of a State or local

government or a quasi-governmental entity with one or more governmental

powers.

System means the organization or agency designated in a State to

administer and operate advocacy programs to protect and advocate the

rights of persons with developmental disabilities under Part C of the

Developmental Disabilities Assistance and Bill of Rights Act [42 U.S.C.

6041, 6042] and thereby eligible to receive allotments from the

Secretary under the Act to administer a program.

Subpart A--Basic Requirements

Sec. 51.3 Formula for determining allotments.

The Secretary shall make allotments to eligible systems from

amounts apportioned each year under the Act on the basis of a formula

prescribed by the Secretary in accordance with the requirements of

sections 112 and 113 of the Act [42 U.S.C. 10822 and 10823].

Sec. 51.4 Grants administration requirements.

The following parts of title 45 CFR apply to grants funded under

this part.

45 CFR part 16--Procedures of the Departmental Grant Appeal

Board.

45 CFR part 74--Administration of Grants.

45 CFR part 75--Informal Grant Appeals Procedures.

45 CFR part 76--Government-wide Debarment and Suspension

(NonProcurement) and Government-wide Requirements for Drug-Free

Workplace.

45 CFR part 80--Nondiscrimination under Programs Receiving

Federal Assistance through the Department of Health and Human

Services--Effectuation of Title VI of the Civil Rights Act of 1964.

45 CFR part 81--Practice and Procedure for Hearings under part

80 of this title.

45 CFR part 84--Nondiscrimination on the Basis of Handicap in

Programs and Activities Receiving or Benefiting from Federal

Financial Assistance.

45 CFR part 86--Nondiscrimination on the Basis of Sex in

Education Programs and Activities Receiving Federal Financial

Assistance.

45 CFR part 91--Nondiscrimination on the Basis of Age in

Education Programs and Activities Receiving Federal Financial

Assistance from HHS.

45 CFR part 92--Uniform Administrative Requirements for Grants

and Cooperative Agreements to State and Local Governments.

45 CFR part 93--New Restrictions on Lobbying.

45 CFR part 1386, Subpart A.

Sec. 51.5 Eligibility for allotment.

(a) Federal financial assistance for protection and advocacy

activities for individuals with mental illness will be given only to a

system that has been established under part C of the Development

Disabilities Assistance and Bill of Rights [42 U.S.C. 6041, 6042] and

designated in accordance with 45 CFR part 1386, subpart B.

(b) The system must meet the requirements of sections 105 and 111

of the Act [42 U.S.C. 10805 and 10821] and that system must be

operational.

(c) Written assurances of compliance with sections 105 and 111 of

the Act [42 U.S.C. 10805 and 10821] and other requirements of the Act

and the regulations shall be submitted by the system in the format

designated by the Director. These assurances will remain in effect for

the period specified in the application for funds unless changes occur

within the State which will affect the functioning of the system, in

which case an amendment is required 30 days prior to the effective date

of the change.

(d) The Governor's written assurance that the allotments made

available under the Act will be used to supplement and not to supplant

the level of non-Federal funds available in the State to protect and

advocate the rights of individuals with mental illness shall be

submitted by the system. The Governor may provide this assurance along

with the assurances provided at ADD under 45 CFR part 1386.

Sec. 51.6 Use of allotments.

(a) Allotments must be used to supplement and not to supplant the

level of non-Federal funds available in the State to protect and

advocate the rights of individuals with mental illness.

(b) Allotments may not be used to support lobbying activities to

influence proposed or pending Federal legislation or appropriations.

This restriction does not affect the right of any system, organization

or individual to petition Congress or any other government body or

official using resources. A system may monitor, evaluate and comment on

the development and implementation of Federal, State and local laws,

regulations, plans, budgets, levies, projects, policies and hearings

affecting individuals with mental illness as a part of federally-funded

advocacy activities.

(c) Allotments may not be used to produce or distribute written,

audio or visual materials or publicity intended or designed to support

or defeat any candidate for public office.

(d) If an eligible system is a public entity, the system shall not

be required by the State to obligate more than five percent of its

annual allotment for administrative expenses such as costs of internal

or external evaluations, monitoring or auditing. This restriction does

not include:

(1) Salaries, wages and benefits of program staff;

(2) Costs associated with attending governing board or advisory

council meetings; or

(3) Expenses associated with the provision of training or technical

assistance for staff, contractors, members of the governing board or

advisory council.

(e) No more than ten percent of each annual allotment may be used

for providing technical assistance and training, including travel

expenses, for staff, contractors, or members of the governing board or

advisory council.

Sec. 51.7 Eligibility for protection and advocacy services.

In accordance with section 105(a)(1)(C) of the Act [42 U.S.C.

10805(a)(1)(C)] and the priorities established by the system's

governing authority together with the mental health advisory council

pursuant to section 105(c)(2)(B) of the Act [42 U.S.C. 10805(c)(2)(B)],

allotments may be used:

(a) To provide protection and advocacy services for:

(1) Individuals with mental illness as defined in 42 U.S.C.

10802(4) and 10805(a)(C), including, persons who report matters which

occurred while they were individuals with mental illness;

(2) Individuals with mental illness in Federal facilities rendering

care or treatment who request representation by the eligible system.

Representation may be requested by an individual with mental illness,

or by a legal guardian, conservator or legal representative.

(b) To provide representation of clients in civil commitment

proceedings if the system is acting on behalf of an eligible individual

to obtain judicial review of his/her commitment in order to appeal or

otherwise challenge procedures which have subjected the individual to

abuse or neglect or otherwise violated his/her rights. This restriction

does not prevent a system from representing clients in commitment or

recommitment proceedings using other resources so long as this

representation does not conflict with responsibilities under the Act.

Sec. 51.8 Annual reports.

By January 1 of each year, a report shall be submitted, pursuant to

section 105(a)(7) of the Act [42 U.S.C. 10805(a)(7)], to the Secretary

which:

(a) Is in the format designated by the Secretary;

(b) Describes the activities, accomplishments, and expenditures of

the system on behalf of individuals with mental illness during the

previous fiscal year;

(c) Includes a section prepared by the mental health advisory

council describing its activities during the previous fiscal year and

its assessment of the program's progress in addressing the priorities,

goals and objectives established for the previous fiscal year; and

(d) Includes a statement of the program priorities established and

shall also address any comments received through public comment.

Sec. 51.9 Financial status reports.

A grantee shall submit a Financial Status Report in accordance with

45 CFR 74.73.

Sec. 51.10 Remedial actions.

Failure to submit an annual report in the designated format on time

or to satisfy any other requirement of the Act, the regulations, or

other requirements may be considered a breach of the terms and

conditions of the grant award and may require remedial action such as

the suspension or termination of an active grant, withholding of

payments or converting to a reimbursement method of payment.

Secs. 51.11-51.20 [Reserved]

Subpart B--Program Administration and Priorities

Sec. 51.21 Contracts for program operations.

(a) An eligible system should work cooperatively with existing

advocacy agencies and groups and, where appropriate, should consider

entering into contracts for protection and advocacy services with

organizations already working on behalf of individuals with mental

illness. Special consideration should be given to contracting for the

services of groups run by individuals who have received or are

receiving mental health services or by family members of such

individuals.

(b) An eligible system may contract for the operation of all or

part of its program with another pubic or private nonprofit

organization provided that:

(1) Any organization that will operate the full program meets the

requirements of sections 104(a)(1), 105 and 111 of the Act [42 U.S.C.

10804(a)(1), 10805 and 10821] and has the capacity to perform

protection and advocacy activities throughout the State;

(2) The eligible system institutes oversight and monitoring

procedures which ensure that all applicable terms, conditions and

obligations of the Federal grant are met;

(3) The eligible system and the contractor organization enter into

a written agreement that includes at least the following:

(i) A description of the protection and advocacy services to be

provided;

(ii) The type of personnel, their qualifications and training;

(iii) The methods to be used;

(iv) A timetable for performance;

(v) A budget;

(vi) Assurances that the contractor will meet all applicable terms

and conditions of the grant;

(vii) Assurances that the contractor has adequate management and

fiscal systems in place, including insurance coverage, if appropriate;

(viii) Assurances that the contractor's staff is trained to provide

advocacy services to individuals with mental illness; and

(ix) Assurances that the contractor staff is trained to work with

family members of clients served by the system where the clients are:

(A) Minors;

(B) Legally competent and choose to involve the family member; or,

(C) Legally incompetent and the legal guardians, conservators or

other legal representatives are family members.

Sec. 51.22 Governing authority.

(a) Each system shall have a governing authority responsible for

planning, design, implementation and functioning.

(b) If the system is organized with a multi-member governing board:

(1) Each system shall establish policies and procedures for the

selection of its governing board members, and their terms;

(2) The board shall be composed of members who broadly represent or

are knowledgeable about the needs of the clients served by the system;

(3) If the governing authority is organized as a private nonprofit

entity, the chairperson of the mental health advisory council shall be

a member of the governing board.

(c) Continuing efforts shall be made to include members of racial

and ethnic minority groups as board members.

(d) A member of the advisory council may also serve on the

governing board.

Sec. 51.23 Advisory council.

(a) Each system shall establish an advisory council to advise on

program policies and priorities.

(b) Members of the council shall include attorneys, mental health

professionals, individuals from the public who are knowledgeable about

mental illness, a provider of mental health services, individuals who

have received or are receiving mental health services and family

members of such individuals. Continuing efforts shall be made to

include members of racial and ethnic minority groups on the advisory

council.

(1) At least 60 percent of the membership (including the chair) of

the advisory council shall be comprised of individuals who have

received or are receiving mental health services or who are family

members of such individuals;

(2) The council shall be chaired by an individual who has received

or is receiving mental health services or who is a family member of

such an individual;

(c) Each system shall provide its advisory council with reports,

materials and fiscal data to enable review of existing program policies

and priorities. Such submissions shall be made at least annually and

shall report expenditures for the past two fiscal years, as well as

projected expenses for the next fiscal year, identified by budget

categories (e.g., salaries and wages, contracts for services,

administrative expenses).

(d) Reimbursement of expenses. (1) Allotments may be used to pay

for all or a part of the expenses incurred by members of the advisory

council in order to participate in its activities. Expenses may include

transportation costs, parking, meals, hotel costs, per diem expenses,

stipends or subsistence allowances, and the cost of day care (or its

equivalent for travel and subsistence expenses) for their dependents

with mental illness or developmental disabilities.

(2) Each system shall establish its own policies and procedures for

reimbursement of expenses of council members, taking into account the

needs of individual council members, available resources, and

applicable restrictions on use of grant funds, including the

restrictions in sections 51.4, 51.6(e) and 51.27(b).

Sec. 51.24 Program priorities.

(a) Program priorities and policies shall be established annually

by the governing authority, jointly with the advisory council.

Priorities shall specify short-term program goals and objectives, with

measurable outcomes, which implement established priorities. In

developing priorities, consideration shall be given to, at a minimum,

case selection criteria, the availability and monetary resources, and

special problems and cultural barriers faced by individuals with mental

illness who are multiply handicapped or who are members of racial or

ethnic minorities in obtaining protection of their rights.

(b) Members of the public shall be given an opportunity, on an

annual basis, to comment on the priorities established by, and the

activities of, the system. Procedures for public comment must provide

for notice in a format accessible to individuals with mental illness,

including such individuals who are in residential facilities, to family

members and representatives of such individuals and to other

individuals with disabilities. Procedures for public comment must

provide for receipt of comments in writing or in person.

Sec. 51.25 Grievance procedure.

(a) The system shall establish grievance procedures to address

complaints from:

(1) clients or prospective clients of the system to assure that

individuals with mental illness have full access to the services of the

program; and

(2) individuals who have received or are receiving mental health

services in the State, family members of such individuals, or

representatives of such individuals or family members to assure that

the eligible system is operating in compliance with the Act.

(b) At a minimum, the grievance procedures shall provide for:

(1) an appeal to the governing authority for any final staff review

and/or determination;

(2) reports, at least annually, to the governing authority and the

mental health advisory council describing the complaints received, the

grievances processed and the resolution;

(3) identification individuals responsible for review;

(4) a timetable to ensure prompt resolution;

(5) a written response to the grievant; and

(6) protection of client confidentiality.

Sec. 51.26 Conflicts of interest.

The system should develop appropriate policies and procedures to

avoid actual or apparent conflict of interest involving clients,

employees, contractors and subcontractors, and members of the governing

authority and advisory council, particularly with respect to matters

affecting client services, particular contracts and subcontracts,

grievance review procedures, reimbursements and expenses, and the

employment or termination of staff.

Sec. 51.27 Training.

(a) A system shall provide training for program staff, and may also

provide training for contractors, governing board and advisory council

members to enhance the development and implementation of effective

protection and advocacy services for individuals with mental illness,

including at a minimum:

(1) Training of program staff to work with family members of

clients served by the program where the individual with mental illness

is:

(i) A minor,

(ii) Legally competent and chooses to involve the family member; or

(iii) Legally incompetent and the legal guardian, conservator or

other legal representative is a family member.

This training may be provided by individuals who have received or are

receiving mental health services and family members of such

individuals.

(2) Training to enhance sensitivity to and understanding of

individuals with mental illness who are members of racial or ethnic

minorities and to develop strategies for outreach to those populations.

(b) A system may support or provide training, including related

travel expenses, for individuals with mental illness, family members of

such individuals, and other persons who are not program staff,

contractors, board or council members, to increase knowledge about

protection and advocacy issues, to enhance leadership capabilities, or

to promote Federal-State and inter-State cooperation on matters related

to mental health system improvement. Decisions concerning the selection

of individuals to receive such training shall be made in accordance

with established policies, procedures and priorities of the system.

Sec. 51.28-51.30 [Reserved]

Subpart C--Protection and Advocacy Services

Sec. 51.31 Conduct of protection and advocacy activities.

(a) A system shall establish policies and procedures to guide and

coordinate advocacy activities.

(b) Wherever possible, the program should establish an ongoing

presence in residential mental health care or treatment facilities, and

relevant hospital units.

(c) Program activities should be carried out in a manner which

allows program staff to:

(1) Interact regularly with those individuals who are current or

potential recipients of protection and advocacy services;

(2) Interact regularly with staff providing care or treatment;

(3) Obtain information and review records; and

(4) Communicate with family members, social and community service

workers and others involved in providing care or treatment.

Sec. 51.32 Resolving disputes.

(a) Consistent with State and Federal law and the canons of

professional ethics, a system may use any appropriate technique and

pursue administrative, legal or other appropriate remedies to protect

and advocate on behalf of individuals with mental illness. However,

each system is encouraged to develop and employ techniques such as

those involving negotiation, conciliation and mediation to resolve

disputes early in the protection and advocacy process.

(b) Disputes, including disputes between an individual with mental

illness and treatment professionals as to a particular course of

recommended treatment, should be resolved whenever possible through

nonadversarial processes involving negotiation, mediation and

conciliation. Consistent with State and Federal laws and canons of

professional responsibility, family members should be involved in this

process as appropriate where the individual with mental illness is:

(1) A minor,

(2) Legally competent and chooses to involve the family member, or

(3) Legally incompetent and the legal guardian, conservator or

other legal representative is a family member.

(c) A system must exhaust in a timely manner all administrative

remedies, where appropriate, prior to initiating legal action. However,

if in pursuing administrative remedies, the system determines that any

matter with respect to an individual with mental illness will not be

resolved within a reasonable time, the system may pursue alternative

remedies, including initiating legal action.

(d) Paragraph (c) of this section does not apply to any legal

action instituted to prevent or eliminate imminent serious harm to an

individual with mental illness.

(e) The Act imposes no additional burden respecting exhaustion of

remedies.

Sec. 51.33-51.40 [Reserved]

Subpart D--Access to Records, Facilities and Individuals

Sec. 51.41 Access to records.

(a) A system shall have access to the records of any of the

following individuals with mental illness:

(1) An individual who is a client of the system if authorized by

that individual or the legal guardian, conservator or other legal

representative.

(2) An individual, including an individual who has died or whose

whereabouts is unknown, to whom all of the following conditions apply:

(i) The individual, due to his or her mental or physical condition,

is unable to authorize the system to have access;

(ii) The individual does not have a legal guardian, conservator or

other legal representative, or the individual's guardian is the State;

and

(iii) A complaint has been received by the system or, as a result

of monitoring or other activities, the system has probable cause to

believe that the individual has been subject to abuse or neglect.

(3)An individual who has a legal guardian, conservator, or other

legal representative, with respect to whom a complaint has been

received by the system or with respect to whom the system has

determined that there is probable cause to believe that the health or

safety of the individual is in serious and immediate jeopardy, whenever

all of the following conditions exist:

(i) The representative has been contacted by the system upon

receipt of the representative's name and address;

(ii) The system has offered assistance to the representative to

resolve the situation; and

(iii) The representative has failed or refused to act on behalf of

the individual.

(b) ``Probable Cause'' to believe that an individual has been or is

in danger of being subject to abuse and neglect exists when the system

determines that a reasonable person in a like position, drawing when

appropriate upon his or her training and experience, would suspect

abuse or neglect.

(c) Information and records which shall be available to the system

under the Act shall include, but not be limited to:

(1) Information and records obtained in the course of providing

intake, assessment, evaluation and other services, including medical

records, financial records, and reports prepared or received by a

member of the staff of a facility or program rendering care or

treatment.

(2) Reports prepared by an agency charged with investigating

reports of abuse, neglect and injury occurring at a facility/hospital

rendering care or treatment, or by or for the facility/hospital itself,

that describe any or all of the following:

(i) Abuse, neglect, and injury occurring at the facility;

(ii) The steps taken to investigate the incidents; or,

(iii) Reports and records, including personnel records, prepared or

maintained by the facility in connection with such reports of

incidents.

(3) Discharge planning records.

(4) Reports prepared by individuals and entities performing

certification or licensure reviews, or by professional accreditation

organizations, as well as related assessments prepared for the facility

by its staff, contractors or related entities, except that nothing in

this section is intended to preempt State law protecting records

produced by medical care evaluation or peer review committees.

(5) Professional, performance, building or other safety standards,

demographic and statistical information relating to the facility.

(d) A system shall be permitted to inspect and copy records,

subject to a reasonable charge to offset duplicating costs.

Sec. 51.42 Access to facilities and residents.

(a) A system shall have reasonable access to public and private

facilities and programs in the State which render care or treatment for

individuals with mental illness and reasonable access to residents/

patients at all times necessary to investigate an incident of abuse or

neglect. Such access shall be afforded upon request by the system when:

(1) An incident is reported to the system;

(2) The system determines there is probable cause to believe that

an incident occurred; or

(3) The system determines that there is or may be imminent danger

of serious abuse or neglect of an individual with mental illness.

This authority shall include reasonable access and authority to examine

all relevant records and interview any facility/hospital service

recipient, employee, or other person who might have knowledge of the

alleged abuse or neglect.

(b) In addition to access as prescribed in paragraph (a) of this

section, a system shall have access to facilities and programs and

their residents/patients at reasonable times, which at a minimum shall

include normal working hours and visiting hours, for the purpose of:

(1) Providing information and training on, and referral to,

programs addressing the needs of individuals with mental illness,

including information and training about individual rights and the

protection and advocacy services available from the system;

(2) Monitoring compliance with respect to the rights and safety of

residents/patients, and

(3) Inspecting, viewing and photographing all areas of the

facility/hospital which are used by residents/patients or are

accessible to residents/patients.

Such activities shall be conducted so as to minimize interference with

facility/hospital programs, respect residents/patient's, privacy

interests, and honor a resident's/patient's request to terminate an

interview.

(c) Access shall be extended to all authorized agents of a system,

including advocates, appropriately supervised trainees, health/mental

health care providers, legal and accounting personnel, and program

contractors.

(d) Access to residents/patients shall include the opportunity to

meet and communicate with an individual regularly, both formally and

informally, by telephone, mail and in person.

Sec. 51.43 Denial of access.

If a facility proposes to deny access to facilities/hospitals,

residents/patients or records, it shall promptly provide the system

with a written statement of reasons, including, in the case of a denial

for alleged lack of authorization, the name and address of the legal

guardian, conservator, or other legal representative of an individual

with mental illness.

Sec. 51.44 Access to federal facilities and records.

A system providing representation to individuals with mental

illness in Federal facilities shall be accorded all the rights and

authority accorded other representatives of residents of such

facilities pursuant to State and Federal laws.

Sec. 51.45 Confidentiality of protection and advocacy system client

records.

(a) Client records are the property of the system which must

protect records from loss, damage, tampering or use by unauthorized

individuals. The system must:

(1) To the same extent as is required by a provider of mental

health services, keep confidential all information contained in client

records, including information contained in an automated electronic

data system, except as provided elsewhere in this section. This

requirement does not restrict access by the Department or other

authorized Federal officials to client records or other records of the

system for audit purposes and for monitoring system compliance with

applicable Federal law and regulations. Subject to the restrictions and

procedures set out in this section, implementing section 106 (a) and

(b) of the Act [42 U.S.C. 10806 (a) and (b)], this regulation does not

limit access by a legal guardian, conservator, or other legal

representative of an individual with mental illness, unless prohibited

by State or Federal law, court order or the attorney-client privilege.

(2) Have written policies governing access to, duplication and

release of information from client records; and

(3) Obtain written consent from the client, if competent, or from

his or her legal representative before releasing information to

individuals not otherwise authorized to receive it.

(b) Nothing in this subpart shall prevent the system from doing any

of the following:

(1) Issuing a public report of the results of an investigation

which maintains the confidentiality of individual service recipients;

or,

(2) Reporting the results of an investigation to responsible

investigative or enforcement agencies should an investigation reveal

information concerning the facility/hospital, its staff, or employees

warranting possible sanctions or corrective action. This information

may be reported to agencies responsible for facility licensing or

accreditation, employee discipline, employee licensing or

certification, or criminal prosecution.

Sec. 51.46 Disclosing information obtained from a provider of mental

health services.

(a) Except as provided in paragraph (b) of this section, if a

system has access to records pursuant to section 105(a)(4) of the Act

[42 U.S.C. 10805(a)(4)] which under Federal or State law are required

to be maintained in a confidential manner by a provider of mental

health services, it may not disclose information from such records to

the individual who is the subject of the information if the mental

health professional responsible for supervising the provision of mental

health services to that individual has given the system a written

determination that disclosure of such information to the individual

would be detrimental to the individual's health. The provider shall be

responsible for giving any such written determination to the system at

the same time as access to the records containing the information is

denied.

(b) If disclosure of information has been denied under paragraph

(a) of this section to:

(1) An individual;

(2) The legal guardian, conservator, or other legal representative

of the individual; or

(3) An eligible system, acting on behalf of an individual:

(i) Whose legal guardian is the State; or

(ii) Whose legal guardian, conservator, or other legal

representative has not, within a reasonable time after the denial of

access to information under paragraph (a) of this section, selected a

mental health professional to review the information,

then such individuals or the system may select another mental health

professional to review the information and to determine if disclosure

of the information would be detrimental to the individual's health. If

such mental health professional determines, based on professional

judgment, that disclosure of the information would not be detrimental

to the health of the individual, the system may disclose such

information to the individual.

(c) This restriction does not affect the system's right to obtain

access to the records.

[FR Doc. 94-30411 Filed 12-13-94; 8:45 am]

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