Substance Abuse and Mental Health Services Administration; Requirements Applicable to Protection and Advocacy of Individuals with Mental Illness; Final Rule

DEPARTMENT OF HEALTH AND HUMAN SERVICES

Public Health Service

42 CFR Part 51

RIN 0905-AD99

Substance Abuse and Mental Health Services Administration;

Requirements Applicable to Protection and Advocacy of Individuals with

Mental Illness; Final Rule

AGENCY: Center for Mental Health Services, Substance Abuse and Mental

Health Services Administration, Department of Health and Human

Services.

ACTION: Final rule.

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SUMMARY: On December 14, 1994, the Department of Health and Human

Services (Department or HHS) published a Notice of Proposed Rulemaking

to comply with the requirements of section 116 of the Protection and

Advocacy for Mentally III Individuals Act of 1986 (Act) (42 U.S.C.

10801 et seq.) which required that the Secretary promulgate regulations

for the implementation of authorized activities of Protection and

Advocacy (P&A) Systems to protect and advocate the rights of

individuals with mental illness. The Department is issuing this final

rule to implement Titles I and III of the Act.

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

systems under the Act. The rule includes: definitions; basic

[[Page 53549]]

requirements regarding determination of, eligibility for and use of

allotments, grant administration, eligibility for protection and

advocacy services, annual and financial status reports, and remedial

actions; and requirements regarding program administration, priorities,

the conduct of P&A activities, access of the P&As to residents,

facilities and records and confidentiality.

DATES: Effective Date: This regulation is effective November 14, 1997

except for the information collection requirements in sections 51.8,

51.10, 51.23 and 51.25. These sections will become effective upon

approval under the Paperwork Reduction Act. A notice of approval will

appear in the Federal Register.

Comments: The Department is soliciting comments on one particular

section as described under section 51.22(2) in the preamble relating to

representation on the governing board. To ensure consideration,

comments must be submitted on or before December 15, 1997 to: Director,

Center for Mental Health Services, 5600 Fishers Lane, Room 15-105,

Rockville, Maryland 20857.

FOR FURTHER INFORMATION CONTACT:

Ms. Carole Schauer, Program Officer, Protection and Advocacy for

Individuals with Mental Illness Program, Center for Mental Health

Services, 5600 Fishers Lane, Room 15C-26, Rockville, Maryland 20857;

telephone (301) 443-3667 (Voice), (301) 443-9006 (TTY). These are not

toll-free numbers. This document is available in accessible formats

(cassette tape, braille, large print or computer disk) upon request at

the Center for Mental Health Services (CMHS) Knowledge Exchange Network

(KEN) at (800) 789-2647 or http://www.mentalhealth.org/.

SUPPLEMENTARY INFORMATION:

Program History

In 1975, HHS 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 Systems designated by each State to protect and

advocate the rights of persons with developmental disabilities. This

program is presently administered by the Administration on

Developmental Disabilities (ADD), in the Administration on Children and

Families.

Since 1986 the Department has provided additional formula grant

funds to the same State-designated P&A systems to protect and advocate

the rights of individuals with mental illness pursuant to the Act, as

amended. The 1988 Amendments changed all references to ``mentally ill

individuals'' in the Act to read ``individuals with mental illness,''

but did not change the name of the Act itself. For purposes of this

regulation, the program is referred to as Protection and Advocacy for

Individuals with Mental Illness (PAIMI). This program is administered

by the Center for Mental Health Services (CMHS), Substance Abuse and

Mental Health Services Administration (SAMHSA).

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

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

with mental illness. ADD has also amended its regulations governing P&A

system operations under the DD Act to implement recent amendments. To

the greatest extent possible the agencies have attempted to make both

sets of regulations consistent.

Segments of the regulation published by ADD on September 30, 1996

(See 51 FR 51142 (September 30, 1996)) have been incorporated into the

PAIMI regulation. The Department's goal is to ensure that all facets of

the P&A system administered by the Department are subject to the same

requirements. The Department hopes that in making the regulations as

consistent as possible (given the minor differences between the

statutes), the P&A will be able to carry out their responsibilities

more effectively.

This approach is consistent with methods of legal analysis as well.

A basic principle of statutory construction is that where statutes

govern similar substantive areas, and affect similar classes of

individuals, courts often attempt to construe such statutes in pari

materia (meaning, on like subject matter) and might interpret certain

provisions of the DD Act as applying to the Act as well. According to a

leading treatise:

``[The] guiding principle * * * [in determining whether statutes

are in pari materia] is that if it is natural and reasonable to

think that the understanding of members of the legislature or

persons to be affected by a statute, be [sic] influenced by another

statute, then a court called upon to construe the act in question

should also allow its understanding to be similarly influenced.''

Sutherland Stat. Const. 51.03 (4th Ed.).

In the present case, Congress appears to have been more than

``influenced'' by the DD Act. The legislative history of the Act

states:

[T]he Committee chose to utilize the existing Protection and

Advocacy Agencies established under the Developmental Disabilities

Assistance and Bill of Rights Act as the eligible system. This will

require them to extend their existing services in order to protect

and advocate for mentally ill persons.

Sen. Rep. No. 99-109 at p. 7, reprinted in 1986 U.S. Code Cong. and

Admin. News at 1361, 1367. In fact, the PAIMI Act explicitly cross-

references the DD Act in defining the eligible system (42 U.S.C.

10802(2)). Accordingly, the Department has attempted to make both

regulations as consistent as possible in places where the language of

the Act supports the inclusion of a particular regulatory provision,

and where it makes sense programmatically to have similar guidance

issued to both parts of the system.

Description of the PAIMI Program

The Act authorizes formula grant allotments to be awarded to P&A

systems designated by the Governor in each State to protect the rights

of and advocate for individuals with mental illness. The allotments are

to be used to pursue administrative, legal, and other appropriate

remedies to redress complaints of abuse, neglect, and rights violations

and to protect and advocate the rights of individuals with mental

illness through activities to ensure the enforcement of the

Constitution, and Federal and State statutes.

The P&As have the authority to: (1) protect and advocate the rights

for persons with mental illness, and (2) investigate reports of abuse

and neglect in facilities that care for or treat individuals with

mental illness. P&As may also address issues which arise during

transportation to or admission or 90 days after discharge from such

facilities. Individuals eligible for services are those who have a

significant mental illness or emotional impairment and who live in

residential facilities. These facilities, which may be public or

private, include hospitals, nursing homes, semi-independent or

supervised community facilities, homeless shelters, jails and prisons.

P&As have special legal authority to access public and private

facilities, residents and clients, and records for the purpose of

conducting independent investigations of incidents of abuse and

neglect.

Each P&A has a governing authority or board of directors with

members who broadly represent and are knowledgeable about the needs of

its clients. Also, they each have an Advisory Council to advise the P&A

system on policies and priorities to be carried out in protecting and

advocating the rights of individuals with mental illness. Sixty percent

of the council is comprised of recipients or former recipients of

mental health services or families of such persons.

[[Page 53550]]

Notice of Proposed Rulemaking

The Department published a Notice of Proposed Rulemaking (NPRM) in

the Federal Register on December 14, 1994 (59 FR 64367-64378).

Interested persons were given 60 days in which to send written comments

regarding the proposed rules. Comments were received from 54

organizations and individuals. Most respondents were from P&A programs;

others included individuals, State chapters of the Alliance for the

Mentally Ill, and State/county mental health providers. Comments were

received from the following national organizations: the National

Alliance for the Mentally Ill, the National Association of State Mental

Health Program Directors, the Federation of Families for Children's

Mental Health, and the National Association of Protection and Advocacy

Systems (NAPAS).

All written comments were analyzed and form the basis for changes

which the Department has made in this final rule.

Summary of Public Comments and the Department Response

In general, most respondents felt that the proposed regulations

provided valuable guidance and would be beneficial in eliminating

needless controversy. The majority of respondents want one source of

comprehensive guidance applicable to both the PAIMI and the Protection

and Advocacy for Persons with Developmental Disabilities (PADD)

programs. Most P&A respondents concurred with the comments submitted by

NAPAS requesting greater specificity regarding the authority of the P&A

systems to gain access to records, to facilities and the residents to

conduct full investigations, e.g., to access records as the result of

observations during monitoring activities; to conduct investigations

and review records of clients routinely subjected to seclusion and

restraint; to access jails and prisons; and to expand system access in

Federal facilities. P&As and others also sought clarification and

conformity regarding the relationship of the Act to other P&A

authorizing legislation and relevant Federal statutes. Some respondents

had comments only on certain sections or addressed more general

concerns such as revisions in eligibility. To the extent possible, the

Department has revised the regulations to meet these concerns.

The Department has also made a number of changes in language for

clarity and to accommodate adopted recommendations. Where appropriate,

the phrases ``resident/patient'' and ``facility/hospital'' have been

reduced to ``resident'' and to ``facility''; ``patient'' and

``hospital'' are included within the meaning of these terms.

All comments received were carefully considered. The discussion

which follows includes a summary of all comments, the Department's

responses to those comments, and a description of any changes that have

been made in the final rule as a result of the comments. Substantive

changes are identified under the appropriate sections, with the

exception of some general comments discussed below.

Also, the Department worked with ADD to ensure that as permitted by

the Act, the Department's requirements are identical or consistent with

ADD requirements that implement the provisions of the DD Act.

Regulations Applicable to Protection and Advocacy for Individuals

With Mental Illness

Several commenters suggested it would be useful to incorporate all

of the statutory definitions into the regulations arguing that the

regulations should provide more than just citations to relevant

sections of the Act and that those sections should be restated or

paraphrased in nontechnical language. The Department has incorporated

much of the relevant statutory language into these regulations. The

sections not incorporated were considered not relevant to providing

clarification.

NAPAS and others recommended that the regulations be in accord with

regulations promulgated under the DD Act to govern the PADD programs.

The Department has coordinated development of these regulations with

ADD to ensure conformity with their regulations and with the DD Act to

the extent possible given the minor differences between the statutes

and has appended language from relevant portions of the DD Act,

specifically those that clarify the mandated activities of the system.

Two respondents asked that the definition of ``individuals with

mental illness'' be expanded to parallel the broad protections offered

by the Americans with Disabilities Act (ADA). The Department responds

that the ADA definition is much broader and more complex than the

definition provided within the Act; therefore, the Department believes

it does not have the authority to expand the definition to this extent

through regulation.

One commenter felt that the PAIMI program should expand eligibility

for services to include children and youth receiving mental health

services in nonresidential, community settings. The Department is not

able, by regulation, to expand the legal mandate of the Act to include

any populations, including children in nonresidential settings.

However, the Department notes that children with serious emotional

disorders are also eligible for services under the PADD program which

has a much broader mandate and does include such settings.

Three commenters asked that the regulations contain a list of all

P&As (name, address, phone) and spell out their authority. The

Department responds that these regulations do spell out the authority

of the P&As. A listing of all P&A systems is available from the CMHS

Protection and Advocacy for Individuals with Mental Illness Program.

The address and phone number of the program are given earlier in the

preamble.

One commenter urged CMHS to review any annual evaluations performed

on the P&As, particularly taking into account the views of primary

consumers and families, and to implement appropriate corrective actions

based on the findings. The Department responds that, in addition to

reviewing the PAIMI program annual reports, CMHS conducts on-site

monitoring and technical assistance reviews. At these visits, CMHS

officials solicit commentary, both public and private. To further

address concerns or criticisms, the regulations require that each P&A

system establish a grievance procedure to assure that individuals with

mental illness have full access to services of the system and, for

individuals who have received or are receiving mental health services

and family members of such individuals, to assure that the eligible

system is operating in compliance with the provisions of the Act. (See

Sec. 51.25)

One commenter asked that the phrase ``mental health'' be deleted in

all references to the system's advisory council. Inasmuch, as this

phrase is not contained in the Act and the deletion of the phrase does

not substantively change the regulation, the Department agrees to make

this change throughout.

Section 51.1 Scope

One respondent felt that the purpose of the Act should be stated in

51.1. The Department responds that this has already been accomplished

under the SUMMARY and SUPPLEMENTARY INFORMATION sections.

Several commenters recommended that this section apply to care or

treatment facilities and other persons or authorities with whom the

system may be interacting or impacting, and not just to the P&A

systems. The Department

[[Page 53551]]

responds that these regulations apply to the operation of P&A systems.

Although the regulations may have an indirect impact on private and

public care or treatment facilities, through State licensing and

regulatory authorities, only the P&A systems are subject to the

regulations.

Section 51.2 Definitions

Several commenters recommended that the definition of abuse be

included in the regulation and that it be expanded to include ``verbal,

nonverbal, mental and emotional harassment and mental or psychological

injury,'' The Department notes that in discussing abuse related to

child abuse, the courts and Congress have included verbal, nonverbal,

mental and emotional harassment and mental and psychological injury.

(See e.g. 18 U.S.C. 3509.) This was done in recognition of the fact

that such abuse has as much, and in many cases, even more lasting

effect on individuals than physical abuse. The Department can do no

less for individuals who are mentally ill, and therefore it is changing

the regulation to add the definition of abuse as in the statute and to

amend that definition to include ``verbal, non-verbal, mental and

emotional harassment and psychological harm.''

Also, several commenters requested that the term ``violation of

rights'' be added whenever the terms ``abuse'' and ``neglect'' are

mentioned in the regulation. Some respondents contended that complaints

regarding rights violations such as unlawful restraint, inappropriate

medications, and denial of communication rights, freedom to practice

religion, access to the electoral process, or freedom of association,

should be included as specific examples. The Department believes it

necessary to clarify the distinction between ``abuse'' and ``neglect''

and ``violation of rights'' because the statute draws a distinction

between them granting to the systems the power to investigate ``abuse''

and ``neglect'' and to protect and advocate on behalf of the rights of

individuals with mental illness. The Department believes that when an

individual's rights as defined in the Bill of Rights for Persons with

Mental Illness established by the President's Commission on Mental

Health (Title II of the Act) are repeatedly and/or egregiously

violated, this constitutes abuse. While the Bill of Rights provides

useful guidance, it should not be considered full or limiting as to

types of rights violations. It is not necessarily true, however, that

every violation of a person's rights is in and of itself ``abuse'' as

defined in the Act. The Department declines the opportunity, however,

of defining the threshold at which a violation of an individual's

rights constitutes abuse, leaving that decision to the systems which

will have intimate knowledge of the situation based on its monitoring

of facilities and its discussion with individuals with mental illness.

A large number of commenters felt that the definition of ``Care and

Treatment'' should be broadened. They argued that the definition is too

narrow to include all facilities providing 24-hour care, and that the

current definition is more oriented to ``treatment'' than to care. Most

asked to eliminate the term ``overnight care'' because it is too

restrictive. The Department believes that the requirement that the

facility provided overnight care meets the intent of the Act which is

to restrict its eligibility to persons who are/were residents of

facilities or who are/were within 90 days of discharge from such

facilities. Overnight care serves only as a minimum requirement;

covered facilities may provide up to 24-hour care.

Many others argued that the definition of care should include

elements of traditional support services such as case management;

accompanying patients to outpatient centers; medical appointments or

day treatment centers; vocational training services; transportation;

education programs; employment programs; and provision of food, water

and clothing. The Department responds that, to the extent that any of

the above-suggested inclusions are provided to individuals with mental

illness in eligible care or treatment facilities, they should be

considered as incorporated within the meaning of ``services to prevent,

identify, reduce or stabilize mental illness or emotional impairment,''

which is used by the National Institute of Mental Health and the CMHS

based on the survey format Mental Health Service System Reports, ``Data

Standards For Mental Health Decision Support Systems,'' which was

developed through consensus in the mental health field.

Several commenters suggested that the definition of ``Complaint''

should include both written and informal oral communications such as

telephone calls (including anonymous calls) that, in the judgment of

the system, state credible allegations of abuse, neglect or other

violation of rights. Further, the Alabama Disabilities Advocacy Program

v. J.S. Tarwater Development Center, 894 F. Supp 424 (M.D. Ala. 1995)

ruled that an anonymous telephone message alleging abuse at a facility

constituted a valid ``complaint'' justifying access to records under

the records access provisions of the Act. The court found that to

require the complainants to divulge their names or reduce allegations

to writing and sworn testimony or make charges of a particular nature

would dilute the Act and too narrowly construe the complaint

requirement. The Department has included written and oral

communications in the definition. Also, the word ``report'' was added

to have the same meaning as complaint. A complaint or report may be

received from any source or individual.

The Act states that a P&A system has the authority to investigate

incidents of abuse and neglect that are either reported to the system

or where there is probable cause to believe that the incidents have

taken place. The Department believes that media accounts and newspaper

articles can be viewed as the equivalent of a complaint when they

provide details about a specific incident of abuse or neglect. While

such reports are not specifically directed at the P&A system, they are

published with the expectation that public officials responsible for

conditions will act to stop abuse. P&A systems have that role. This

does not preclude a P&A system from acting on behalf of a unnamed

client or on behalf of a class of people. (See Sec. 51.6(f).)

A definition of Designated Official has been added for clarity, to

conform with ADD regulatory definitions. This individual is accountable

for the proper use of funds and conduct of the P&A system.

Many commenters asked that a definition of Facility be included and

that it specifically include all types of community living

arrangements. The Department agrees that a definition of ``Facility''

should be added, but does not agree that the definition include all

types of community living arrangements. The intent of the Act was to

focus only upon facilities that provide ``care or treatment,'' i.e.,

those facilities that provide overnight care accompanied by services to

prevent, identify, reduce or stabilize mental illness or emotional

impairment, including supportive services, even if only ``as needed''

or, under a contractual arrangement, up to 24-hour care.

The Department has added a definition of ``Full Investigation'' to

clarify what an investigation entails and to conform to the PADD

regulation. We note that while an investigation involves access to

facilities, PAIMI systems have authority in their monitoring role to

access facilities

[[Page 53552]]

regardless of whether or not a complaint has been registered or

probable cause exits.

Several commenters asked that the definition of ``Individual with

Mental Illness'' be included. The Department agrees that the definition

would add clarity to the regulations on a substantive issue. It has

added the definition provided in the Act, clarified as addressed below

regarding jails, prisons and detention facilities.

Commenters requested that the regulations clarify whether P&As may

serve prisoners with mental illness who are maintained within the

general prison or jail population (not just the mental health units of

such facilities) and who may receive mental health services from time

to time. The Department concurs that a system may assist prisoners or

detainees with mental illness who are maintained within the general

prison or jail population and who may receive mental health services

from time to time as well as those who are maintained in special mental

health units. This language has been incorporated into the definition

of ``Individual with Mental Illness.''

The Department would like to clarify some confusion in the statute

with regard to jails and prisons. In section 102(3) of the Act jails

and prisons are clearly listed as facilities. Yet section 102(4) in the

definition of ``individual with mental illness,'' indicates that such a

person includes an individual who has a mental illness and ``who is

involuntarily confined in a municipal detention facility for reasons

other than serving a sentence resulting from a conviction for a

criminal offense.'' Is the statute suggesting that if a person with a

mental illness is convicted of a criminal offense and sentenced to a

State or Federal jail or prison that provides care or treatment, that

person is covered by the Act, but one confined to a municipal detention

center that provides care or treatment is not covered? To clarify this

ambiguity, the Department is expanding the definition of ``individuals

with mental illness'' to include persons in a detention facility, jail

or prison which provides overnight care or treatment, whether they have

been convicted of a criminal offense or not, and whether the facility

is municipal, State or Federal.

Others requested guidance on which, if any, juvenile detention

facilities are included and whether juveniles with a mental illness who

are serving sentences for conviction for a crime, are excluded if they

are housed in a juvenile ``detention facility.'' The Department

responds that juveniles with a mental illness who are in an overnight

municipal detention facility, jail or prison which provides care or

treatment are covered whether they have been convicted of a criminal

offense or not.

Several respondents addressed the definition of ``Legal Guardian,

Conservator and Legal Representative,'' One suggested that the phrase

``or agency empowered under State law to appoint and review such

officers'' was confusing and should be eliminated. Others asked that,

to avoid conflicts of interest, a legal guardian should not include a

family member with whom the mentally ill person resides who is also the

payee and responsible for conducting the business of the person. The

Department responds that it does not intend to supersede State laws

regarding which agency may appoint and review guardianships nor will it

mandate for States whom they shall name as guardian.

Some felt that the restriction on officials responsible for the

provision of health and mental health services in the definition of

Legal Guardain did not go far enough because those same officials often

have authority to appoint others as conservators. The Department agrees

in this instance, and will change the definition to include the phrase

``or their designees.'' The Department reiterates that a legal guardian

for the purposes of this regulation is an individual who is appointed

by the appropriate State powers to be a legal guardian for the

individual and who has the authority to consent to health/mental health

care or treatment for the individual with mental illness.

Other comments were in support of not including: guardians ad litem

appointed for limited and specific purposes other than health/mental

health care and treatment; representative payees; persons appointed

during probate proceedings as administrator or executor of the estate;

and lawyers representing persons in divorce proceedings, tax hearings

or in criminal matters unrelated to mental health status. The

Department agrees that all of the above are restricted within the

current definition.

One respondent asked whether the definition included parents of

minor children. The Department responds that natural or adoptive

parents are legal guardians unless the State has appointed another

legal guardian under applicable State law.

Several commenters suggested that inappropriate confinement or

placement in a facility should be included under ``Neglect.'' The

Department understands the comment to be about confinement, and it

believes that treatment should be based on principles of accepted

practices of quality mental health care. If a person with a mental

illness is confined or placed in a facility with disregard to the

principles of accepted practice, such confinement could be abuse or

neglect.

One respondent called for certain rights of consumers to be

included such as the provision of palatable food, adequate bathroom

breaks, access to medication, allowance for arrangements to be made for

ongoing care of pets, etc. The Department responds that the Act does

not define ``rights'' but rather provides in Title II, a Bill of Rights

(``Restatement of Bill of Rights for Mental Health Patients'') and

recommends that States, in establishing laws that protect and serve

individuals with mental illness, take into account these

recommendations.

A large number of commenters requested that a discussion of

probable cause be moved to the definition section. The Department

agrees and has done so. Others suggested that the phrase ``or may be''

should be inserted in the probable cause definition to amplify ``has

been subject to abuse or neglect'' stating that this would be

consistent with Congressional intent that the P&A systems ensure the

protection of individuals with mental illness. The Department agrees

and has included the phrase ``or may be at significant risk of being

subject to abuse or neglect'' in the new definition.

In addition, a large number of commenters supported the proposal

that probable casue be defined as a belief based solely on the

independent judgment of the system (advocate, attorney, or other person

authorized to act on behalf of the system). Commenters argued further

that it be made clear that the system is not required to disclose the

basis of its probable cause finding to a facility or to any other third

party; their determination should not be subject to review by a

facility, authority, or Court or some other third party. The Department

agrees that the determination of whether sufficient probable cause

exists shall be based on the independent judgment of the P&A system

(that is, the judgment of the advocate, attorney, or other person

authorized to act on behalf of the P&A system); however, it is outside

of the Department's purview to give sole discretion to the P&A system

in this matter. The Department does not have the authority, by

regulation, to insulate a P&A system from having to articulate the

basis of its probable cause determination when requested.

[[Page 53553]]

In several places, the statute balances the need to maintain the

confidentiality of individual records with the need to protect an

individual from abuse and neglect. In general, the statute requires

consent before any records are released to the P&A. However, in certain

circumstances where the individual does not have a guardian, or where

the guardian is unavailable or refuses to act), the P&A may obtain

records without consent of the responsible party, if there is probable

cause to believe that the individual has been or may be subject to

abuse and neglect. In these situations, the facilities may be required

to violate State law in order to provide the P&A with the records to

which the statute and these regulations give them access. In the

Department's view this is a very serious matter that requires a careful

balancing of all of the interests represented here. Certainly,

therefore, it is reasonable to expect that the system may be required

to demonstrate that there was an adequate basis to justify the release

of confidential records without consent.

However, the Department understands the difficulty the P&A systems

confront in these situations. The P&A systems often receive complaints

from individuals who fear reprisal if they come forward. If the P&A

systems are required to disclose the names or other identifying

information of those individuals who contacted the P&A with complaints

about abuse and neglect, it is likely that far fewer people will come

forward. This will severely impair the ability of the P&A systems to

carry out statutorily mandated functions. Accordingly, the Department

has added language to the regulation in section 51.45(a)(1)(iii) which

makes clear that the P&A system must keep confidential information

regarding individuals who report incidents of abuse or neglect, or who

furnish information that forms the basis for a determination of

probable cause.

One commenter believed that ``reasonable suspicion'' should be used

instead of ``probable cause'' arguing that it would provide a lower

threshold for inquiry. The term ``probable cause'' is used in the Act.

A comment was made that the definition of ``System'' should be

clarified so that when the regulations say ``the system shall have the

authority and access to * * * '' it is readily understood as meaning

all authorized employees of that system. This suggestion was countered

by a number of State mental health facility operators who said that

only attorneys should have access to patients and not other PAIMI

program advocates. The Department responds that the Act grants access

to the PAIMI program. Thus anyone acting on behalf of the system is to

be granted access to all areas of the facility which are used by

residents or accessible to residents.

Subart A--Basic Requirements

Section 51.3 Formula for Determining Allotments

One commenter recommended that the formula for determining the

amount of allotments be revised. The Department responds that it cannot

change the current language of the law by regulation.

Section 51.5 Eligibility for Allotments

A commenter under NPRM section 51.27 felt that the system should be

obligated to budget for training. The Department agrees that the system

should budget for training, but does not wish to regulate this matter.

The Department does require an annual report that includes a PAIMI

budget.

One respondent asked for clarification regarding who is required to

submit the assurances. The commenter noted that the system is

authorized to provide the assurances directly to CMHS but that the

``supplement and not supplant'' assurance be signed by the Governor

before being submitted by the system. It was recommended that paragraph

(d) be deleted, and that the nonsupplanting assurance be included with

the assurances described in paragraph (c), Another commenter suggested

that there be one set of assurances for an entire P&A system, rather

than viewing PAIMI as an independent program which is simply housed

with PADD programs. The Department wishes to clarify that the system

shall submit and sign all assurances but the ``supplement and not

supplant'' assurance must bear a gubernatorial signature. This

assurance may be a copy of an earlier similar assurance submitted to

ADD as long as it can reasonably be construed as covering the PAIMI

program as well. Any future ``supplement and not supplant'' assurances

shall explicitly refer to the PAIMI program.

Section 51.6 Use of allotments

Almost half of the commenters urged that the regulations clarify

whether or not a P&A system has standing to take legal action in its

own name. It was explained that mechanisms to protect individual

confidentiality are not foolproof, and that facility residents too

often fear retaliation from their care providers as a result of their

participation in a lawsuit concerning institutional conditions or other

matters. Another reason for enabling P&A systems to have independent

standing is that, unfortunately, the credibility of an individual with

a diagnosis of mental illness is all too often automatically

questioned. In addition, it is reported that very often persons with

mental illness who wish to play a direct role in a lawsuit are unable

to do so because their legally authorized representative refuses to

consent. These respondents claim that it is extremely time consuming

and costly to have to litigate the question of standing before being

able to proceed to the merits of a case. They maintain that potential

defendants might settle matters more quickly, prior to the initiation

of legal action, if they knew that the P&A system itself might bring

the suit and not the resident.

The Department agrees in part and disagrees in part. The concept of

``standing'' derives from Article III of the Constitution. Article III

limits the ``judicial power'' of the United States to the resolution of

``cases'' and ``controversies.'' In various cases addressing the issue

of standing, the Supreme Court has held that ``at an irreducible

minimum. Article III requires the party who invokes the court's

authority to `show that he personally has suffered some actual or

threatened injury as a result of the putatively illegal conduct of the

defendant,' and the injury `fairly can be traced to the challenged

action' and `is likely to be redressed by a favorable decision'.'' See

Valley Forge Christian College v. Americans United for Separation of

Church and State. 454 U.S. 464 (1982). Thus, the issue of standing is a

basic jurisdictional issue that has been left to the judiciary to

determine based on the facts and circumstances of a particular case.

In promulgating regulations, the Secretary must act within the

bounds of her authority and develop rules that are consistent with the

language of the statute. The Act doe not contain any provision that

would provide the Secretary with sufficient authority to, by

regulation, grant a right of standing that is not explicitly noted in

the statute. The Department, however, points out that the legislative

history of the 1994 DD Act Amendments (Sen. Rep. No. 103-120, 103rd

Cong., 2d sess., 39-40, reprinted in 1994 U.S. Code Cong. and Admins.

News at 164, 202-203), strongly supports the view that, without showing

injury to itself, a P&A system does have standing to bring suit on

behalf of persons with disabilities. Although Congress declined to

amend the DD Act to insert a right of standing, the report stated that

``the current statute is clear that P&A systems have

[[Page 53554]]

standing to pursue legal remedies to ensure the protection of and

advocacy for the rights of individuals with developmental disabilities

within the state.''

Further, the following courts have affirmed the P&A systems

independent standing: Alabama Disabilities Advocacy Program v. J.S.

Tarwater Development Center, No. 95-T-385-N (M.D. Ala. July 6, 1996);

Rubenstein v. Benedictine Hospital, 790 F. Supp. 396 (N.D. N.Y. 1992);

Goldstien v. Coughlin, 83 F.R.D 613 (W.D.N.Y. 1979); Hershberger v.

Missouri Protection and Advocacy Services, Inc., No. 48169 (MO Ct. of

Appeals, August 2, 1994).

In light of the report language and the case law cited above, while

the Department cannot offer standing in regulations, it can and does

permit systems to use funds for the costs incurred in bringing lawsuits

in its own right and has added this provision at 51.6(f).

Section 51.7 Eligibility for Protection and Advocacy Services

Several commenters requested that the definition of ``Individual

with Mental Illness'' should be included in this section as well as in

the definition section. The Department has incorporated the definition

in the Definition section of this regulation (section 51.2) and feels

that this is sufficient.

Section 51.7(a)(2)

Department staff recommended that all of the requirements for

eligibility for eligibility for P&A services be incorporated into the

regulations. Paragraph (2) regarding the 90-day post discharge

requirement as stated in section 105(a) of the Act has been added to

address eligibility requirements.

It was requested that the regulations clarify whether PAIMI

programs may address any rights violations that occur within 90-days of

discharge from a facility, or whether such violations must be related

to the care of treatment provided by the discharging facility. The

Department responds that the Act itself does not restrict the nature of

advocacy services which may be provided during the 90-day post-

discharge period, but the legislative history shows that the general

intent of Congress was that the 90-day post-discharge period was

primarily to enable redress against facilities which discharge persons

without providing appropriate community follow-up and housing services.

Several commenters supported the section of the regulation that

allows P&A systems to address issues which occurred within the 90-day

post-discharge period, even though they may be brought to their

attention after expiration of the 90-day period. The Department agrees

that neither the Act nor the final regulations place a time limitation

on the authority of the P&A system to address complaints of abuse or

neglect that occurred during the 90-day post-discharge period.

Section 51.7(a)(3)

One commenter recommended that this section be modified to enable

requests for representation in Federal and other facilities by a family

member, friend or other concerned party acting on behalf of an

individual with mental illness who, by reason of incapacity or

otherwise, is unable to request services him/herself. It was further

recommended that P&As be obligated to initiate a preliminary

investigation upon receipt of a complaint from a family member. While

the Department agrees that family members and, in fact, anyone, should

be able to initiate a complaint or report to the PAIMI program, the

intent of this regulation is to meet the special limitations of P&A

authority in Federal facilities and to distinguish between persons who

may make a report and those who are legally authorized to actually

request or consent to representation by the P&A. Only the individual

with mental illness, or, for individuals lacking capacity to consent, a

legally authorized repressentative--as defined in the regulation--can

request or consent to representation by the P&A.

Section 51.7(b)

One commenter asked that the word ``procedures'' in this section be

changed to read ``acts or omissions'' which have subjected the

individual to abuse or neglect or otherwise violated his/her rights. It

was argued that in one State there are literally hundreds of

individuals who are under civil commitment orders and being held in

State facilities solely by reason of the failure of the public mental

health system to provide them with adequate discharge planning. The

commenter found that the most effective strategy is to challenge the

civil commitment order and/or to file a petition for discharge through

the probate court. The regulation would suggest that the system only

has authority to undertake these actions when there is a procedural, as

opposed to a substantive, violation. The Department agrees and will

change the wording of the regulation as suggested.

Section 51.8 Annual Reports

Subparagraphs (2), (3) and (4) of section 51.8 of the NPRM were

removed to enable the Department more flexibility regarding report

requirements. The Annual Reports will be implemented under the

legislative authority pursuant to section 105(a)(7) of the Act (U.S.C.

10805(a)(7), not regulatory.

Section 51.9 Financial Reports

This section was deleted because the Financial Status Report

requirement is included under section 51.4 Grants Administration

Requirements, 45 CFR Part 74-Administration of Grants.

Section 51.10 Remedial Actions

In response to Department staff concerns about the lack of clear

requirements about review and monitoring activities of grantees,

additional language was added to strengthen requirements regarding

Department requests for information and documentation, corrective

action plans and ongoing implementation status reports.

Subpart B--Program Administration and Priorities

Section 51.21 Contracts for Program Operations

Section 51.21(b)

A few respondents recommended that organizations with which the

PAIMI program contracts should be only those with proven knowledge

about mental illness and the service system. The Department agrees that

PAIMI program contractors, in their capacity to perform protection and

advocacy activities, should demonstrate experience in working with

individuals with mental illness and has added this language to the

regulation.

Section 51.21(b)(3)(viii)

To conform with requirements which have been added at 51.27(c) that

P&As provide training for staff to conduct ``full investigations,'' a

similar provision has been inserted here to ensure that PAIMI service

provider contractors must also provide such training.

Section 51.22 Governing Authority

Section 51.22(a)

Department staff suggested that the requirement in the Act

regarding the establishment of program priorities and policies jointly

with the advisory council be inserted here to strengthen the provision.

It has been added.

[[Page 53555]]

Sections 51.22(b) (1) and (2)

The Department notes that the Act currently requires only that the

governing board be composed of members ``who broadly represent or are

knowledgeable about the needs of the individuals served by the system''

whereas the DD Act states that the board ``shall include individuals

with developmental disabilities who are eligible for services, or have

received or are receiving services, or family members, guardians,

advocates, or authorized representatives of such individuals.'' The Act

requires that only one individual on the governing board, specifically

the Chair of the PAIMI Advisory Council, be an individual who has

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

such an individual.

Several respondents suggested that this regulation should be

revised to read: ``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.'' Another

commenter recommended that at least 25 percent of the governing board's

membership should be composed of persons nominated by consumer and

family member organizations, who have demonstrated sustained leadership

and commitment to achieving improvements in the system of care, that

``no individual may serve more than four successive years as a member

of the governing authority,'' and that terms should be staggered. A

small number of commenters wanted to add a requirement for the

governing board to annually evaluate the performance of the P&A system

director and the PAIMI director adding that as part of their

evaluation, comments on performance and leadership from consumer and

family member organizations within the State shall be solicited and the

results of such evaluation be used as a basis for the establishment of

any subsequent year's performance standards. The Department responds

that it considers each of these suggestions as reasonable and good

practice but does not wish to enforce all such specific policies

through regulation.

The Department has sufficient evidence concerning governing board

memberships to support the need to enhance the composition of P&A

governing boards to balance the current inequitable representation of

PAIMI client constituencies. Therefore, the Department is proposing to

add language to the regulations requiring that the membership of the

governing board shall include at least a 25 percent representation of

individuals with mental illness and of family members of individuals

with mental illness. The Department solicits further comment on this

issue. Depending on the comments received, the Department may revise

the section. To ensure consideration, comments must be submitted to the

address given earlier in the preamble within 60 days after publication

of this final rule.

The Department agrees with the need for rotational and limited

number of board member terms and for board evaluation of the P&A system

director; therefore, it has added such language. The term of office of

a board member shall be for 4 years and the member may not be

reappointed to the board for a 2-year period. Rotational and a limited

number of terms of board members encourage recruitment of persons

bringing new skills and ideas to the board, prevent bias and burnout,

and permit more consumers to participate in governing the system.

Annual evaluation of the P&A director by the board fosters performance

accountability.

Section 105(c) of the Act states that the governing authority shall

``be responsible for the planning, design, implementation, and

functioning of the system.'' The Department does encourage the P&A

systems to develop operating policies that incorporate requirements

that further encourage board membership policies to identify relevant

criteria for member selection and qualifications, and for an annual

review of the Executive Director's performance that takes into account

the appraisals of relevant constituency groups.

Section 51.23 Advisory Council

Section 51.23(a)

The Department recommended that the authority and responsibility of

the Advisory Councils be strengthened to ensure the ability to provide

advice and recommendations to the P&A without being unduly influenced

by the P&A. This independent critical eye from individuals served by

the P&A can only improve its services. The Department inserted language

requiring that the council provide ``independent'' advice on program

policies and priorities.

Section 51.23(b)

One commenter suggested that individuals who have received or are

receiving mental health services should appear first in the listing of

the council's composition. The Department responds that for purposes of

clarity the language should be consistent with the Act.

Several commenters wished to add a requirement in this section that

advisory council members who are ``individuals from the public who are

knowledgeable about mental illness'' must ``have demonstrated a

substantial commitment to improving mental health services'' as a

conditions of their membership. The Department agrees that such

criteria is useful and inserted the language after ``mental illness''

in this section.

Section 51.23(b)(1)

A small number of commenters were concerned that, to ensure

expertise about how the system is presently serving children and youth,

at least one family member on the council should be the primary care

giver for an individual who is currently a minor child or youth who is

receiving or has received mental health services. To ensure the

inclusion of knowledge and experience regarding children with serious

emotional disturbances and the mental health services they need, such

language was added to this section.

Section 51.23(b)(3)

Department staff recommended that an annual minimum number of

advisory council meetings be required in order to allow the council

sufficient time to conduct its business and provide advice on program

policies and priorities. The Department has added language requiring

that councils meet, at a minimum, no less than three times a year. This

in no way should be considered limiting.

In response to the recommendation that governing board members be

limited in the number of terms they serve, the Department believes this

would also be useful for the advisory council. Rotational and a limited

number of terms of council members would encourage recruitment of

persons bringing new skills and ideas to the council, prevent bias and

burnout, and permit more consumers to participate in advising the P&A.

The Department agrees with the need for rotational and limited number

of board member terms and for board evaluation of the P&A system

director; therefore, it has added such language. The term of office of

a board member shall be for 4 years and the member may not be

reappointed to the board for a 2-year period.

Section 51.23(c)

There was a recommendation to require that status information and

analysis be provided to advisory council members to address each of the

following:

(1) Individual advocacy services, including case selection

criteria, the

[[Page 53556]]

availability of 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;

(2) Systemic factors, including

(a) the adequacy and coordination of information sharing with like

organizations within the State and nationally; and

(b) the adequacy of State psychiatric consumer services, rights

laws and their enforcement with regard to:

(i) managed care, HMOs, and similar community organization

protections, and

(ii) State institutions or State-operated facilities.

The Department does not wish to require numerous specific items to

be provided which impose additional burdens and are not contained in

the Act. However, the Department believes that the P&A system should

provide as much information as necessary to enable the council to

perform their responsibilities efficiently and responsibly. If

information such as identified above is readily available, then it

should be provided. Also, nothing should prohibit council members who

desire such detailed information from seeking it from the system or

from national technical assistance resources. In line with the

Department's initiative to implement program performance outcome

measures, language has been added under 51.23(c) to require that

program performance outcome evaluation results be provided to the

advisory council.

Section 51.23(d)

It was recommended that reimbursement for the cost of day care for

dependents of individuals with mental illness be extended to include

minor children and youth without disabilities. The Department

disagrees; the costs of day care can be reimbursed only for persons

with children who have a serious emotional disturbance, because this

enables participation by family members of such individuals in keeping

with the intent of the Act. The term ``child care'' was added and the

description for equivalent expenses was expanded to further clarify the

requirement.

Section 51.24 Program Priorities

Section 51.24(a)

A modification was recommended whereby the advisory council would

approve the PAIMI priorities and policies before being submitted to the

governing authority for approval. The Department believes that section

105(c)(2) of the Act is very clear in saying that the governing

authority is solely responsible for planning, design, implementation,

and functioning of the system. It is also very clear that annual

priorities of the system are to be developed jointly with the advisory

council.

The Department believes that to ensure consideration of systemic

and legislative needs and issues, P&A systems should include priorities

for systemic and legislative activities in developing annual priorities

and has added this requirement.

Section 51.24(b)

Another commenter asked that the requirement be expanded so that

public commentary on a system's annual priorities include comments

regarding the general operations of a P&A system. The Department

responds that the requirement to obtain public commentary already

includes commentary on general operations, i.e., activities of the P&A

system, as a part of establishing the system's annual priorities.

Section 51.25 Greivance procedure

The Department modified this section to address the confusion in

the use of two terms--``grievances'' and ``complaints.'' To conform

with the Act, only the term ``grievance'' has been used.

Section 51.25(a)(2)

One commenter noted that the second class of complaint, which is to

``assure that the eligible P&A system is operating in compliance with

the Act'' is confusing and needs clarification. The Department responds

that this section requires the P&A system to address grievances about

how it is operating and to ensure that its activities and policies meet

the intent of the Act. Failure to conduct activities in accordance with

the requirements of the law is a serious breach of public trust and

this is a different issue than ensuring that clients or prospective

clients have access to the services provided by the system.

A second commenter expressed reservations about the license

provided by this regulation to stimulate ``generic'' grievances against

a P&A system based on unfounded assertions that the P&A is not in

compliance. The Department responds that inasmuch as P&As are funded

with public monies, they must adhere to the statutory mandate and

provide access to their constituencies and respond to questions or

complaints concerning their activities. The Department believes that a

P&A which is operating in accordance with these regulations will have

no difficulty responding to generic grievances with respect to

compliance with the Act.

Section 51.25(b)(1)

One respondent did not support a ``final review'' of grievances by

the governing board. The Department strongly believes that the

governing board should have final responsibility for resolving

contentious grievances. Department staff recommended that language be

added to require that in cases where the governing authority is the

director of the P&A, a final review be done by a separate entity. It

was explained that in State P&A agencies where the governing authority

is a single person and may be the person to whom a grievance is

directed, it is not appropriate for that person to review and make a

final determination on the grievance. The Department agrees and has

added language requiring that P&As provide for final review on appeal

of grievance decisions to an independent board or a superior in cases

when the governing authority is a single person.

Section 51.25(b)(2)

One respondent argued that since advisory councils do not have

authority concerning policy and personnel issues, complaints received

should be made to the governing authority, which is involved in policy

and personnel issues. The Department wants to clarify that advisory

councils are not involved in the grievance process. This requirement

merely states that the system should report annually to the council

summarizing the general nature of the complaints or grievances against

the PAIMI program. The Department believes that such information is

extremely relevant in developing the following year's priorities and

objectives. However, no identifying information concerning clients or

staff and no personal identifiers concerning the grievants should be

included in any such reports.

One commenter asked that this requirement include: ``a trend

analysis of the sources, issues, timeframes and other pertinent factors

relating to grievances received.'' The Department does not wish to

develop specific format and content requirements for these reports; the

governing authority and Advisory Council should identify this for

themselves.

Section 51.25(b)(4)

Responsive to concerns by Department staff that prospective

clients, clients or persons denied

[[Page 53557]]

representation receive prompt notification about the grievance policy

and the progress being made on their grievance, the Department has

added a requirement that the P&A system establish as part of its

grievance procedures timetables to ensure prompt notification.

Section 51.26 Conflicts of Interest

A small number of commenters suggested rewording the section as

follows: ``further, conflicts of interest should consider the extent to

which an individual's personal or political allegiances may inhibit, or

appear to inhibit, the performance of a position or its attendant

duties in the best interests of persons with a mental illness.'' While

the Department appreciates the general concern being raised, it would

not be useful for a Federal regulation to address such a consideration.

The P&A systems may develop personnel policies which consider the

extent to which an individual's experience contributes to the promotion

and advocacy of individual rights.

Section 51.27 Training

One commenter suggested that training should be limited to topics

consistent with carrying out activities under the Act. The Department

agrees and believes that the language of the regulation as stated

sufficiently communities this. However, responsive to demonstrated need

and repeated requests from P&A system staffers, and in conformity with

ADD, the Department has included under (c) a specific type of training

thought to be essential to the effective implementation of P&A system

activities, namely training to conduct full investigations.

Another respondent felt that the system should be obligated to

budget and provide support for training as necessary to meet the

established priorities. The Department responds that the system is

required to have a staff ``which is trained or being trained'' and sets

aside ``not more than 10 percent of its allotment to spend on technical

assistance and training.'' The Department believes that training for

staff is obligatory but that, for the most part, the nature of such

training should be determined by the system to meet individual staff

needs and any special foci of its annual goals and objectives.

Additionally, the Department has added language at 51.23(c) requiring

that the advisory council be provided fiscal data on the amount

expended and projected for training of each the advisory council,

governing board and staff.

Several respondents asked that the regulations require that

families and consumers be involved in training and that such

individuals also be involved in the planning and implementation of

training for PAIMI advocates. The Department responds that the use of

individuals with mental illness or family members of such individuals

can be extremely valuable resources for PAIMI training but does not

wish to require this by regulation.

One commenter felt that training on working with families should be

extended to all support personnel working in the system. The Department

will not require this but urges P&A systems to provide all necessary

training to individual staff based upon an ongoing assessment of their

needs.

Counter opinions felt that mandating specific kinds of training

creates an intolerable situation for P&A systems with minimal resources

and suggested that the language in paragraphs (a) and (b) be

eliminated. The Department responds that this specific training is

mandated by the Act and believes that there is justifiable cause for

requiring it. The Department believes that every system employee should

be provided with such training and that it is appropriate to require

specialized training or ``refresher'' training as necessary.

Sections 51.28-51.30 Reserved

Subpart C--Protection and Advocacy Services

Section 51.31 Conduct of Protection and Advocacy Activities

Section 51.31(a)

A few commenters recommended that language on use of appropriate

techniques and remedies, which originally appeared in section 51.32(a),

would be more appropriate as an introduction to this section. The

Department agrees and, in conformity with ADD regulatory structure, has

moved this language to 51.31(a). Also, in response to commenters'

suggestions in the definition section that the term ``violation of

rights'' be added whenever ``abuse'' and ``neglect'' are used, the

Department added language in this section indicating that appropriate

remedies may be used to address abuse, neglect, or violation of rights.

Section 51.31(b)

Several commenters believed that the regulations did not directly

address the potential for redundance with other statewide advocacy

programs and felt that the PAIMI program should be required to

coordinate and collaborate with any established, State-funded agency

providing patient rights advocacy services. P&A system efforts should

augment current services and not duplicate them. The Department notes

that in having an assurance that forbids the State from using Federal

funds to supplant the level of non-Federal funds, it effectively

requires augmentation. (See section 51.5(d).) Also, the Department

notes that the requirement for annual priority setting necessitates

coordination with other advocacy groups and is accomplished, in part,

by requesting and responding to public commentary. The Secretary

further requires that annual reports of the PAIMI program identify

other groups with whom it worked cooperatively on activities. Ongoing

coordination and collaboration is absolutely encouraged by the

Department.

To conform with ADD regulations, the Department has added a

requirement that no policy or practice shall be implemented by the P&A

system that restricts the remedies which may be sought on behalf of

individuals with mental illness. This is to ensure that a P&A system

use all the remedies, e.g., administrative and legal, it has available

to redress complaints brought by clients.

Section 51.31(c)

Many commenters strongly supported the requirement that the PAIMI

program establish an ``ongoing presence'' in residential mental health

care facilities, but one respondent wanted it made clear that

facilities have no obligation to provide office space, telephones, or

other financial support to the system. The Department responds that the

regulatory language does not imply any such obligations. The Department

encourages the regular appearance and presence in facilities by PAIMI

advocates but does not necessarily intend that on-site offices be

maintained. However it is expected that facilities will provide space

for unaccompanied private conversations with residents and clients.

Section 51.31(d)(1)

One commenter suggested that this section establish consistent

policies regarding access to day rooms, living quarters, and treatment

areas. The Department responds that this section includes interactions

with residents or staff in all areas of facilities used by or

accessible to residents. To ensure this, the Department will insert the

phrase ``all areas of the facility which are used by residents or are

accessible to residents'' in sections 51.42(b) and (c).

[[Page 53558]]

Section 51.31(e)

Department staff recommended that section 51.27(b) regarding

training for individuals who are not program staff, contractors, board

or council members be moved to section 51.31 because its content is

more appropriate under the conduct of P&A activities. This has been

done. A respondent felt that training in self-and peer-advocacy skills

should be provided by the P&A system. Self-advocacy training involves

teaching the mental health consumer skills, and providing support and

assistance to present his or her views either about personal treatment

or about the wider service needs, and peer-advocacy training involves

providing mental health consumers with skills to support and assist

other mental health consumers about personal treatment or about wider

service needs. The Department agrees that such training is immensely

valuable and may be provided but does not wish to mandate it.

Section 51.31(f)

One respondent noted that this regulation appears to authorize

systemic advocacy and argued that P&A system activities should be

limited exclusively to matters of abuse, neglect and rights violations.

The Department does not agree. P&A systems are clearly authorized by

section 101(b)(2)(A) of the Act to engage in systemic, and other types

of advocacy activities, including the pursuit of administrative, legal

and other appropriate remedies to ensure that the rights of individuals

with mental illness are protected. One commenter believed ``that not

enough attention is being paid by the P&A systems to Advocacy,'' that

persons with mental illness need advocates who can plead for their just

causes in public forums and before legislative executive bodies and

government agencies, and that a separate section should be added to the

regulation to address the advocacy role. The Department agrees that P&A

systems shall carry out systemic advocacy--those efforts to implement

changes in policies and practices of systems that impact persons with

mental illness, and legislative activities--those involving monitoring,

evaluating, and commenting upon the development and implementation of

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

other actions which affect persons with mental illness. Legislative

activities was addressed under section 51.6(b) of the NPRM, but has

been moved here because the Department believes that system activities

related to monitoring, evaluating and commenting on the development and

implementation of Federal, State and local laws, etc., fit more

appropriately under this section on conduct of P&A activities. The

Department has also added language at paragraph (f) requiring P&A

systems to address systemic activities.

Section 51.31(g)

A number of respondents asked that the regulations clarify that a

probable cause determination of a PAIMI program may be based on

information obtained from ``monitoring or other activities'' and that

this be understood to apply to a wide range of similar activities. The

Department agrees and has added language about ``monitoring and other

activities'' and ``general conditions affecting health or safety''

under this paragraph.

Section 51.31(h)

This section was added to ensure equal applicability to PAIMI

programs and to conform with identical provisions which appear in the

DD Act and ADD regulations. This requirement assures that a State P&A

system will not be hindered by State personnel or administrative

policies in carrying out advocacy activities.

Section 51.31(i)

Two commenters asked that there be a provision stating that State

laws which grant P&A systems greater access are not superseded by the

Act. The Department agrees that where State laws give the system

greater authority than these regulations, such laws shall prevail and

has inserted subsection (i) to ensure equal applicability to PAIMI

programs in conformity with provisions appearing in the DD and ADD

regulations. Also, the Department has inserted language to make clear

that State law must not diminish the authority of the Act.

Section 51.32 Resolving Disputes

Section 51.32(a)

For clarity, the first half of the NPRM language for this section

has been moved to 51.31(a) The remainder of the original is in this

section.

Section 51.32(b)

One commenter argued that the phrase ``disputes regarding a

particular course of treatment'' should not be singled out from other

disputes regarding a person's rights, particularly because, under both

Federal and State law, there is an explicit right to refuse treatment

under certain circumstances. The Department agrees that it does not

appear useful to specify a particular type of dispute and will delete

the phrase.

Another commenter noted that this provision might be used by

hospitals and clinicians to require P&A systems to demonstrate that

negotiation and mediation had been initiated and had proven

unsuccessful before a legal action or even a formal administrative

complaint could be initiated. The Department notes that under paragraph

(d) the system has the authority to take action when it believes the

administrative process is not resolving an issue within a reasonable

period of time, and further that when the situation is an emergency,

the system can bypass the administrative process. Further, paragraph

(e) states that the Act ``imposes no additional burden respecting

exhaustion of remedies'' and that the intent of this section is only

that nonadversarial techniques be used for resolution ``whenever

possible.''

Another respondent feared that the requirement to involve family

members might discourage or prohibit eligible individuals from

participating in a legal action. The Department responds that this

section deals only with nonadversarial processes. The Department notes

that under this subsection family members have the opportunity to

participate in negotiations; however, individuals who are not under

guardianship are legally competent to decline to have family members

involved.

Section 51.32(c) (d) and (e)

A number of commenters disagreed with the provision that a PAIMI

program should be required to ``exhaust all administrative remedies''

prior to initiating a legal action; only one respondent encouraged this

interpretation. One commenter suggested that this requirement had been

used by the Office of Attorney General as a tactic to delay action on

cases: ``It is the client who cannot get services and whose health

continues to deteriorate who suffers from this process.'' A large

number of commenters recommended that the word ``all'' be deleted,

arguing that exhaustion should be required only in circumstances where

a clear administrative scheme exists. Others felt that the section

should adopt the general principles of administrative law which relieve

a party of the need to ``exhaust'' when such action would be

ineffective or futile. It was further argued that this regulation could

be construed to impose a higher burden on P&A systems to use

administrative remedies and that the last sentence under (a) adequately

addresses this

[[Page 53559]]

issue by encouraging P&A systems to use negotiation, conciliation, or

mediation early in the protection and advocacy process.

The Department notes that the language which appeared in the NPRM

is more restrictive than intended by the Act; the phrase ``in a Federal

or State court'' was inadvertently left out of the phrase following

``legal action.'' Without this phrase, it might appear as though any

kind of legal action would be affected. Since it is not intended that

this requirement unnecessarily inhibit a P&A system from pursuing legal

actions, the phrase, in Federal or State courts, has been reinserted.

In addition, the Department has added phrases under (d) to clarify the

intent that no additional burden is imposed where no administrative

remedies exist and that a system is permitted to seek legal action

after exhausting administrative remedies. The Department feels that, as

amended, the regulation is reasonable, particularly when read together

with the sentence which addresses the issue of ``reasonable time,'' and

with paragraph (d) which states that the admonition does not apply to

``any legal action instituted to prevent or eliminate imminent serious

harm to an individual with mental illness'' and with paragraph (e)

which states that ``the Act imposes no additional burden respecting

exhaustion of remedies.'' For purposes of clarity, the Department has

added language to paragraph (e) requiring that a ``system shall be held

to the standard of exhaustion of remedies provided under State and

Federal law.''

Section 51.33-51.40 Reserved

P&A Subpart D--Access to Records, Facilities and Individuals

Many respondents urged that the regulations make clear that these

requirements supersede all State statutory and common law prohibitions

concerning P&A system access to records and that nothing in this part

should be construed to limit the authority of a P&A to gain access to

records. The Department responds that State law must not diminish the

required authority of the Act and the P&A system may exercise its

authority under State law where the authority exceeds the authority

required by the Act. This requirement is set forth under 51.31

``Conduct of P&A Activities.''

Section 51.41 Access to records

Section 51.41(a)

For purposes of clarity and consistency, the section ensuring

access to records by all authorized agents of a system has been moved

from 51.42(c) in the original NPRM and inserted here.

Section 51.41(b)

This paragraph was formerly section (a). All commentary submitted

in response to items in former paragraph (a) are reproduced here as

applicable to new paragraph (b). The definition of ``Probable Cause''

which formerly appeared as paragraph (b) in the NPRM has been moved to

the Definitions section (51.2) for clarity and consistency and in

response to many requests.

A large number of respondents believed that an incident of abuse or

neglect should refer not only to a particular individual, but also to

general conditions or problems that affect many or all individuals in a

facility. They argued that neither the Act nor case law imposes an

individual-specific probable cause requirement. The Department agrees

and has provided for this under conduct of P&A activities in 51.31(g)

by including general conditions affecting health or safety as well as

in 51.41(b)(2)(iii) by including that a P&A system may determine that

an individual with mental illness ``may be'' subject to abuse or

neglect.

It was recommended by several commenters that the Department

require a mandatory time frame of 3 days for the release of records,

once authorization has been obtained, and that the P&A system be

granted expedited access--24 hours--in certain emergency situations.

They reported that uncooperative facilities have attempted to thwart an

investigation by ``sitting on'' the records. The Department agrees that

access must be provided promptly, and has inserted this in the

regulation under paragraph (a). The Department does not wish to mandate

a specific time frame for release of records but notes that Sections

51.32(c) and (d), which permit the system to seek legal action after

exhausting administrative remedies, apply to circumstances regarding

disputes concerning the delay or denial of access to records.

Section 51.41(b)(2)(ii)

A few respondents wanted clarification on whether permission from

the guardian was necessary in order for a P&A system to access the

records of a deceased person. They requested affirmation of their

understanding that a P&A system may access records when, under State

law, the relationship between a deceased person and a legal

representative/guardian terminates at death. The Department responds

that access to the records of a deceased person is governed by State

law.

One respondent requested that the last phrase of this subparagraph

be revised to clarify that neither State nor ``one of its political

subdivisions'' may prohibit access to records. The Department agrees

that the intent is to prohibit denial of access by the State or by any

of its political subdivisions where there is probable cause and the

State is the individual's guardian, and has added this language.

Sections 51.41(b)(3)(i) (ii) and (iii)

Many respondents noted that these subsections appear to require

that the legal representative actually be contacted before a P&A system

would be allowed to take independent action. They reported their

experience that legal guardians often are unavailable for long periods

of time, or refuse to communicate with the P&A system. The Department

agrees that restricting the ability of the P&A system to act in

circumstances when it has probable cause to believe that the health or

safety of the individual with mental illness is in serious and

immediate jeopardy and the legal representative is unavailable, would

compromise the intent of this subsection, particularly in light of

subparagraph (iii) which allows the P&A system to take action if the

representative has filed or refused to act. The language will be

changed to reflect the Department's intent that the system must have

made a ``good faith effort'' but that contact is not required. P&A

systems should be able to document efforts made to contact the

representative of an individual and that these efforts are reasonably

calculated to be effective in notifying the representative.

Section 1.41(c)

Many respondents noted that to conduct a full investigation, a P&A

system should have access to all records whether written or retained in

another medium, and whether draft or final document, including

handwritten notes, video or audio tape recordings; electronic files or

photographs; ``daily happenings'' sheets (changes in status,

discharges, ward transfers); policy and procedures manuals maintained

by a facility; court documents; emergency room records; quality

assurance documents; personnel records; records of transporting

entities; and physical and documentary evidence reviewed with related

investigative findings. It is argued that without an opportunity to

review information from various sources, there can be neither a full

investigation nor a determination of whether the investigation of

another agency or facility was sufficiently

[[Page 53560]]

thorough. The Department agrees that any or all of the above-named

records may be considered relevant on a case-by-case basis, and that

they all be considered under the current meaning of ``records.'' The

Department has incorporated a number of items which clarify the

intention that all records are to be accessible, but it has not

included every single example.

One commenter was concerned that the regulations appear to allow

access to records which in a number of States are confidential by law.

This individual argued that system access to records should be granted

only when the request is in compliance with the requirements set by

State statutes. Another felt that the regulations exceeded the

authority provided in the statute and went well beyond certain State

statutes by providing access to in-house incident reports,

certification and licensing reports, facility self-assessment reports,

and financial records. Another felt that the following records should

be exempt: records protected by the attorney-client privilege; reports

prepared by individuals and entities performing certification or

licensure reviews; reports prepared by professional accreditation

organizations; and related assessments prepared by the facility, its

staff, contractors or related entities. The Department does not agree.

It is clearly the intent of the Act that the system have full access to

``all records of an individual'' pertaining to a full investigation of

a report or complaint. The only exception noted [Senate Report 102-114,

102nd Congress, 1st Sess. 5, 1991] is the Joint Commission on

Accreditation of Hospitals Report--peer review/medical review records.

In order for the P&A system to carry out its mandate to protect the

rights of individuals with mental illness and to investigate

allegations of abuse or neglect in public and private facilities, they

must be empowered to access information contained in all records

relevant to such activities. In all circumstances where there is a

direct conflict these regulations will supersede State law unless State

law gives greater access. However, the Department does not intent to

preempt State statutes that protect from disclosure the records

produced by medical care evaluation or peer review committees. In

addition, where there is a State statute that requires certain

procedures with respect to personnel records, the Department expects

P&As to follow these procedures.

Several respondents supported the importance of including records

which do not only relate to the individual who is the object of a full

investigation and felt it particularly important that the decision

regarding which records are relevant be at the sole discretion of the

system.

The Department agrees that the P&A system shall have ``reasonable

access'' to all ``relevant'' records.

In order to be consistent with the Act at section 105(a)(4) that

provides that a P&A shall ``have access to all records of--any

individual,'' and the DD regulations, the Department has inserted the

word ``individual'' before records in paragraphs (c) and (c)(1).

Several commenters recommended that the system representatives be

authorized to access records which are not in the actual possession of

the facility but which are relevant to a full investigation. The

Department agrees that the intent of the Act is to enable system access

to all relevant records and will insert language under (c)(1) to ensure

access to records maintained by or in the possession of the provider's

agency or stored or maintained by any other entities (whether or not

such entities actually produced the records). In obtaining such

records, the system shall ensure that it has obtained appropriate, and

specific, consent consistent with the requirements of section 105(a)(4)

of the Act. Also, the P&A shall request of facilities that in

requesting records from service providers or other facilities on

residents that they indicate in the release form the records may be

subject to review by a system. This language has been inserted in

paragraph (c)(1).

Section 51.41(c)(2)(iv)

Several respondents requested that the following information and

records also be identified as accessible to the P&A: supporting

information relied upon in creating a record, including all information

and records used or reviewed in preparing reports of abuse, neglect,

injury or violations of rights such as records which describe persons

who were interviewed, physical and documentary evidence that was

reviewed, and the related investigative findings. The Department agrees

and has included this language in (c)(2)(iv) except that violations of

rights are covered only to the extent that they fall into the

definition of abuse.

Section 51.41(d)

Two commenters believed that the authority to access the records of

any persons who might have knowledge about alleged abuse or neglect

should be included under Access to Records. The Department agrees but

notes that P&A systems should have only ``reasonable access'' to such

records and that access to records of facility service recipients be

consistent with sections 105 and 106 of the Act. The Department has

moved this section from 51.42(a)(3) to 51.41(d). What previously was

(d) shall now be (e).

Section 51.41(e)

Two respondents mentioned that allowing a facility to charge fees

for copying records imposes a financial strain on the P&A systems and

asked that the regulations set limits to control these costs. In

addition, they request that the regulations clarify that the system has

the right to obtain and copy the actual records and not only to

``inspect'' records on site at the facility. The Department does not

which to specify fee limitations, however, it notes that the P&A system

may not be charged more than is ``reasonable'' according to prevailing

local rates, and certainly not a rate higher than that charged any

other service provider. Nothing shall prevent a system from negotiating

a lower fee or no fee. The Department agrees that these regulations do

authorize the P&A system to have access to the actual records and to

make copies; simply allowing a system to ``view'' or ``inspect''

records is not sufficient. Because of the insertion of (c) noted above,

the Department has moved this section to 51.41(e).

Section 51.42 Access to Facilities and residents

Section 51.42(a)

For clarity, this section has been moved from (c) to (a) where the

Department felt it more appropriate.

Section 51.42(b)

All comments received responsive to section (a) as published in the

NPRM are addressed here under (b).

One respondent mentioned that it would be helpful if the

regulations clarified that children's facilities are also covered by

the access and confidentiality of information provisions. Access is

often held up by providers until the P&A system can convince them of

the requirement that all records and information are confidential. The

Department responds that children's care and treatment facilities are

covered by these regulations and that the confidentiality requirements

also apply.

On commenter argued that the regulation should require mandatory

access for conducting full investigations of abuse or neglect. The

Department responds that ``reasonable access'' is sufficient and means

during all hours and shifts and not only on week days during facility

``business hours.'' Access

[[Page 53561]]

should be as prompt as necessary to conduct full investigations of

abuse and neglect when an incident has been reported to the system or

when the system has determined probable cause.

Two commenters believed that the authority to access the records of

and interview any persons who might have knowledge about alleged abuse

or neglect is too broad. The Department agrees in part that the

authority is too broad pertaining to records, but not to interviews.

The Department believes that the P&A has reasonable access and

authority to interview and examine all relevant records of any facility

service recipient (consistent with section 105 of the Act) or employee.

The phrase ``other person who might have knowledge of the alleged abuse

or neglect'' was deleted from this paragraph. Others urged that this

authority also be included in the Access to Records provisions under

section 51.41. The Department agrees and, with the caveats noted above,

moved this authority to 51.41(d). Also, the Department added language

to section 51.42(b) in conformity with the DD regulations indicating

that as part of the access authority, the P&A has the opportunity to

interview any facility service recipient, employee or other persons.

Several commenters suggested that P&A systems should not be

required to provide notice to a facility that they are going to come to

that facility to investigate an incident, and further, that P&A systems

should be able to appear unannounced at a facility to investigate any

report that is regarded as an emergency. The Department responds that

the regulations do not require notice to be given a facility in advance

of an investigation, but that in nonemergency instances such notice is

reasonable. The Department agrees that in cases where a system believes

that an individual with mental illness is, or may be, in imminent

danger of serious harm, the system should investigate as quickly as

possible and that, as written, the regulations do provide for prompt

access.

Many commenters felt that P&A systems should have the right to

access facilities ``whenever necessary'' to investigate alleged

incidents of neglect and abuse. They maintained that reasonable access

means access ``at any and all times necessary'' to conduct a full

investigation of an incident, that the determination of

``reasonableness'' should reside with the P&A system, and the facility

should be required to give access on request. If the facility wishes to

contest the ``reasonableness,'' they should be authorized to do so only

after the access has been granted, not before. The Department does not

agree that the P&A system should have access at ALL times, but does

accept the argument that access be granted ``all times necessary * * *

'' to conduct a full investigation, and particularly when the system

has determined ``probable cause'' that there is or may be imminent

danger of serious abuse or neglect of an individual with mental

illness. In addition, 51.42(c) provides for access to facility

residents and to programs ``at reasonable times, which at a minimum

shall include normal working hours and visiting hours.'' Access should

not be limited only to business hours during week-days, and should be

to all areas used by residents or accessible to residents. Access is

afforded the system under this section at (c)(2) in order to monitor

compliance with respect to the rights and safety of residents. Finally,

the Department has inserted the definition of ``Full Investigation'' to

mean the `` * * * access to facilities, clients and records authorized

under these regulations that is necessary for a P&A system to make a

determination about whether an allegation of abuse or neglect is taking

place or has taken place.''

Several respondents wished the regulations to include a requirement

that facility residents be provided with the name, address, and

telephone number of the P&A, uncensored access to writing materials,

and private access to a telephone, for contacting the P&A. The

Department agrees that such conditions are reasonable and it shall be

considered applicable in this section under paragraph (c)(1), as

revised.

Two commenters believed that the authority to monitor compliance

with patient rights is too broad. The Department disagrees; monitoring

compliance with patient rights is an opportunity to prevent incidents

from occurring and to ensure that facility staff, as well as residents,

understand what their rights are.

Several respondents recommended that P&A access not be hindered by

facilities through requirements that monitoring, training, tours or

other activities at the facility take place only with advance notice or

in the presence or company of facility staff. Such practices deny the

P&A system the ability to monitor for health, safety or environmental

violations, or to observe the general living conditions of the

residents.

One respondent suggested that, in the case of an actively

aggressive resident, the P&A staff should be permitted to observe the

client from a safe distance to verify the situational need. It was

suggested that the P&A system be permitted to observe the client

privately with the seclusion door open, to wait until the aggressive

behavior has stopped, and to reschedule a visit at a time mutually

agreeable to the parties, but not later than 48 hours and if the client

is placed on one-to-one supervision, P&A staff should be permitted to

observe or otherwise verify the behavior which calls for such

supervision.

The Department responds that the intent of the regulations is to

ensure that P&A systems have full unaccompanied access to residents and

to all areas of the facility accessible to residents. In the interest

of safety, access to certain nonpublic areas or to certain residents

may be restricted by the facility but only in accordance with the

procedures stipulated in section 51.43 (Denial or Delay of Access). The

procedure for observation seems reasonable but the Department does not

wish to provide detailed guidance in this instance for the conduct of

P&A system activities. Policies and procedures should be developed by

each P&A system itself to guide and coordinate advocacy activities.

One respondent suggested that the facility should make P&A

literature, which explains P&A system services and the rights of the

residents under the Act and other laws, available to residents and to

legal guardians. Such materials should be made available upon admission

to the facility and at regular intervals (at least quarterly)

thereafter. The Department agrees that such literature should be

available but cannot require facilities to do so. The Department notes

that the P&A systems are to establish an ongoing presence in the

facility and are authorized in this section under (c)(1) to provide

information to residents.

Section 51.42(d)

Several commenters suggested that paragraph (d) be modified to

specifically include persons who have legal guardians or conservators,

arguing that the definition should be as expansive as possible in order

to meet the clearly delineated purpose of the Act. One suggested that

the regulations specify that, in response to a request for assistance

from a minor or from an individual with a legal guardian, the P&A

system may respond by visiting the requester, but may not institute

formal negotiations. The Department agrees that such is the case and

has added language to clarify that P&As have access to persons who have

legal guardians, including both adults and minors, regardless of

whether there is a State or local law or regulation which

[[Page 53562]]

restricts access to minors and adults with legal guardians. The

Department has become award of several situations where a state or

local requirement stood as an impediment to providing general

information to individuals or monitoring general conditions of

facilities. In these situations, the facilities argued that the P&A

could not have any formal access to such individuals prior to obtaining

consent from the individual's guardian or conservator. In the

Department's view this prevents the P&As from carrying out their

statutorily mandated duties, by preventing them from speaking with, and

monitoring conditions affecting the safety of, individuals who have

legal guardians--including minors. Accordingly, the Department intends

that these regulations shall preempt any State or local laws and

regulations which prohibit access to such individuals without obtaining

consent from the guardians and has added such language at 51.42(e). The

Department notes, however, that the P&A system may take no action on

behalf of individuals with legal guardians or conservators without

appropriate consent, except in emergency situations as discussed above.

In all cases, the Department encourages facilities to provide general

notice to guardians regarding the responsibilities of the P&A system,

and inform them that it is possible that the P&As may speak informally

with residents regarding their rights as well as conditions affecting

their health or safety. Also, the Department has inserted into this

paragraph the requirement that the P&A shall make every effort to

ensure that the parents of minors or guardians of individuals in the

care of a facility are informed that the system will be monitoring

activities at the facility and may in the course of such monitoring

have access to the minor or adult with a legal guardian.

Although the regulations address the issue of privacy, many

respondents felt that they should be strengthened to ensure private

communications and unaccompanied access to clients, without having to

provide a justification to the facility. It is felt that only by

frequent personal contact, without the presence of institutional staff,

can the P&A system effectively carry out its mission of protecting the

rights and safety of residents. The Department agrees that private and

unaccompanied access to clients and other residents should be provided

and that, if denied, justification should be required under 51.43. The

regulations incorporate a provision which specifies that the system

generally shall be permitted unaccompanied access to meet and

communicate privately with individuals, informally or formally, without

the presence of facility staff.

Section 51.42(f)

In response to Department comments section 51.44 Access to Federal

facilities and records in the original NPRM has been moved here. This

change is to consolidate access requirements regarding facilities and

records.

Several commenters argued that there is no reason to differentiate

Federal from State facilities and that this section be deleted. One

commenter suggested that the section be reworded to read: ``a system

providing representation to individuals with mental illness in Federal

facilities shall be accorded the same rights and authority accorded to

that system in other public and private facilities.'' The Department

disagrees. Principles of statutory interpretation require that Federal

facilities be excluded if not specifically included. Congress clearly

intended that there be a differentiation. The regulatory language is

taken exactly from the 1991 amendments to the Act and the Department

has no justifiable reason to change it through regulation.

Section 51.43 Denial or Delay of Access

The title of this section has been changed to accommodate

recommendations received in the commentary regarding delay of access.

Several commenters argued that the section on denial of access

serves no useful purpose, is addressed in the Resolving Disputes

section, and should be deleted. The Department does not agree.

Commenters expressed concern that this section would routinely invite

denial or delay of access by facilities. The Department understands the

concern, but responds that if and when access is denied to records,

facilities and residents, it is critical that the P&A be protected from

dealing with lengthy denial processes; therefore, this section

requiring that a facility provide a prompt written justification when

denying access will remain.

It was argued by several respondents that P&A systems should not

have to provide any justification of their need to access the name,

address and phone number of guardians, conservators or other legal

representatives and that systems should have easy access to such

information. If access is denied, the commenters recommend that the

facility be required to provide written justification for the denial as

promptly as possible, and no longer than three days. The Department

agrees that the system has no requirement to provide justification

concerning their need for access to information regarding guardians,

conservators or legal representatives and that this information should

be provided promptly. The regulation includes the word ``prompt,'' but

the Department feels that a time-specific definition of ``promptness''

is not a matter for regulation.

Some commenters alleged that facilities often deny unaccompanied

access to a resident when the authorized mental health professional

determines it ``necessary for treatment purposes;'' they argue that

such denial of access should be allowed only for specified, limited,

and reasonable periods of time, and that the reasons for it should be

noted in the resident's treatment plan. Additionally, they wanted the

P&A system to be provided documentation in writing, to include the

reasons for the denial of access to the resident. Others believed that

a mental health professional should never be able to deny an individual

with mental illness access to their attorney. The Department notes

these concerns and responds that all denials of access are subject to

the conditions of this subsection.

Section 51.45 Confidentiality of Protection and Advocacy System

Records

For purposes of clarity, this section will apply to all records

maintained in the possession of the system, and not only to ``client''

records. The word ``Client'' has been dropped from the title.

Two commenters noted that the confidentiality requirements proposed

in this section are inconsistent with parallel requirements applicable

under the DD Act and the Protection and Advocacy for Individual Rights

program. The argument which these respondents made was that Congress

intended that the parallel requirements of the three programs be

applied in a consistent manner. The Department agrees and has made

changes to these regulations to conform with the ADD regulatory

language to establish uniform requirements.

Others asked that these requirements be applicable both to persons

whom the system views as its ``client'' and to persons who have merely

been provided general information or technical assistance by the

system. The Department agrees and has added language under subparagraph

(a)(1)(ii) and (3) of this section.

One commenter believed that a person or entity receiving

information

[[Page 53563]]

from a P&A system should be advised of its confidential nature. This is

particularly important when such information is being released to third

parties. All clients should be told prior to consenting to release

information that it may be disclosed to third parties in certain

instances. The Department responds that these regulations require each

P&A system to establish such policies with regard to release of

information concerning clients and has addressed this under sections

51.45 (a)(2) and (a)(3).

One commenter stated that the principles of attorney-client

privilege should generally govern P&A system confidentiality

requirements. Such requirements should include a provision that the

confidentiality requirements extend not just to clients, but to anyone

who contacts a P&A system seeking advice or assistance. The Department

agrees and has included regulatory language to address this under

(a)(1)(ii) and (3).

One commenter believed that section 106(a) of the Act was intended

to ensure that the system maintain the confidentiality of records in

compliance with applicable State, Federal, and local laws and with the

rules of any involved organization or institution which has legal

responsibility for the records. The actual language of that sections

states that ``an eligible system which * * * has access to records

which, under Federal or State law, are required to be maintained in a

confidential manner by a provider of mental health services shall * * *

maintain the confidentiality of such records to the same extent as it

required of the provider of such service.'' The Department has inserted

``under Federal or State laws'' at (a)(1)(i) in this section to clarify

the issue. The Department requires that the highest standards of

confidentiality be maintained so that all parties are assured of and

have confidence in the security of the confidentiality of any records

released to the P&A system.

Several commenters stated that confidentiality is essential and

that the P&A system must be able to assure clients and informants that

they will not reveal information about their cases or identities of

clients. The Department agrees that confidentiality is essential but

notes that a system may not provide complete and absolute assurance

that no confidential materials will ever be viewed by other parties--

albeit under the same strictures of obligation to confidentiality. The

Department has added language under (a)(1)(iii) and (a)(3) in

conformity with ADD regulations, to keep confidential the identity of

individuals who report incidents of abuse and neglect and of

individuals who furnish information that forms the basis for a probable

cause determination.

For purposes of clarity, the paragraph that starts after (b)(2)

``For purposes of any periodic audit * * *'' and the following

paragraph have been labeled paragraph (c) and (d) and moved to the end

of section 51.45. One respondent was concerned that the language may be

interpreted as giving investigative and enforcement agencies access to

client records if such agencies have been called in to investigate a

complaint against the P&A system. The Department responds that these

regulations allow excess to client records in very limited

circumstances and only to the Department and other authorized Federal

or State officials for purposes of audit or for monitoring system

compliance with applicable Federal or State laws and regulations. The

purpose of obtaining information from client files is to determine

whether P&A systems are spending grant funds appropriately. Official

that have access to such information must keep it confidential to the

maximum extent permitted by law and regulations. In response to

comments received and to conform with the ADD regulations, the

Department has inserted under paragraph (c) respecting the disclosure,

under certain circumstances, of confidential information to Federal and

State officials. This language clarifies that the purpose of obtaining

personally identifiable client information is solely to determine that

P&A systems are spending Federal grant funds in conformity with the Act

and these regulations. Language has been included to indicate that

officials who have access to such information must keep it confidential

to the maximum extent permitted by law and regulations.

One commenter had concerns about the relationship between the

confidentiality provisions of these regulations and those which are

applicable to alcohol and other drug treatment records. The Department

notes that this is a significant issue that is beyond and outside of

the scope of these regulations and will require resolution within the

context of 42 CFR Part 2, ``Confidentiality of Alcohol and Drug Abuse

Patient Records.'' The conflict arises when consent cannot be obtained

for the release of confidential information either because the person

is not competent and does not have a guardian or because the person

cannot be located. Under such circumstances the P&A system would have

to petition the courts for an order to obtain the records. The

Department has no response at this time and welcomes further commentary

on this issue for consideration. Some respondents argued that there

should be an absolute and clear Federal standard of confidentiality,

one which does not refer to rules applicable to mental health service

providers in a particular State. The Department responds that there

currently is no Federal standard regarding the confidentiality of

general medical records. Because most States have statutory

requirements governing confidentiality of patient records, the

Department does not wish to impose different requirements in this area.

Section 51.46 Disclosing Information Obtained From a Provider of

Mental Health Services

Two commenters noted the error in the last sentence of paragraph

(a) which states that such determination shall be provided at the time

that the system's access to the information is ``denied.'' To correct

this error, the word ``granted'' will be substituted for the word

``denied.''

Impact Analysis

Executive Order 12866

Executive Order 12866 requires that regulations be reviewed to

ensure that they are consistent with the priorities and principles set

forth in the Executive Order. The Department has determined that this

rule is consistent with these priorities and principles. An assessment

of the costs and benefits of available regulatory alternatives

(including not regulating) demonstrated that the approach taken in the

regulation is the most cost-effective and least burdensome while still

achieving the regulatory objectives.

This final rule implements the 1991 reauthorization for the

Protection and Advocacy for Mentally III Individuals Act of 1986 (Act)

42 U.S.C. 10801 et seq.). The regulations provide guidance on the

implementation of authorized activities P&A systems to protect and

advocate the rights of individuals with mental illness. These are final

rules to implement Titles I and III of the Act, as amended. 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. The regulations provide

basic definitions and clarify the requirements of the Act.

The Department estimates that these regulations will not result in

additional cost to the Federal Government, the

[[Page 53564]]

States, universities and any other organizations to which they may

apply.

Regulatory Flexibility Act of 1980

Consistent with the Regulatory Flexibility Act [5 U.S.C. Ch. 6],

the Department tries to anticipate and reduce the impact of rules and

paperwork requirements on small businesses. For each rule with a

``significant economic impact on a substantial number of small

entities,'' an analysis describing the rule's impact on small entities

is prepared. The primary impact of these regulations is on the States,

which are not ``small entities'' within the meaning of the Act.

However, they will affect small private institutions providing services

to individuals with mental illness. This impact will be minimal in that

the institutions will simply be subject to review at no cost when a

complaint is made against them. For these reasons, the Secretary

certifies that these rules will not have a significant impact on a

substantial number of small entities.

Paperwork Reduction Act

This final rule contains collections of information that are

subject to review by the Office of Management and Budget (OMB) under

the Paperwork Reduction Act of 1995 (Pub. L. 104-13). The title,

description, and respondent description of the information collection

are shown 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 Subchapter 51--FINAL RULE.

Description: Data to be reported are required by 42 U.S.C. 10805

and 10821 and will be used by the Secretary to determine grantee

eligibility for allotments and to evaluate compliance with the Act.

Additionally, data will be collected to publish annual reports that are

submitted to the President, the Congress, and the National Council on

Disabilities as required by 42 U.S.C. 10824 of the Act and 42 U.S.C.

6006 of the DD Act.

Description of respondents: Private and public grantees.

Estimated Annual Reporting Burden:

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

Average

Annual Annual burden per Annual

number of frequency response burden

respondents (hours) hours

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

Section 51.8 Program........................................ 56 1 ........... ...........

Performance Report:

Part I.................................................. ........... ........... 33 ...........

Part II................................................. ........... ........... 2 ...........

(Subtotal).............................................. ........... ........... (35) 1,960

Section 51.8 Advisory Council Report........................ 56 1 10 560

Section 51.10 Remedial Actions:

Corrective Action Plan.................................. 6 1 8 48

Implementation Status Report................................ 6 3 2 36

Section 51.23(c) Reports, materials and fiscal data to

Advisory Council........................................... 56 1 1 56

Section 51.25(b)(2) Grievance Procedure..................... 56 1 .5 28

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

Total................................................. ........... ........... ........... 2,688

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

In compliance with Section 3506(c)(2)(A) of the Paperwork Reduction

Act of 1995, the Substance Abuse and Mental Health Services

Administration is providing the public with the opportunity to comment

on the information collection requirements contained in this final

rule. In order to fairly evaluate whether a collection of information

should be approved by the Office of Management and Budget (OMB), the

Paperwork Reduction Act requires that we solicit comments on:

whether the proposed collection of information is

necessary for the proper performance of the functions of the Agency,

including whether the information shall have practical utility;

the accuracy of the Agency's estimate of the burden of the

proposed collection of information;

ways to enhance the quality, utility, and clarity of the

information to be collected; and

ways to minimize the burden of the collection of

information on respondents, including through the use of automated

collection techniques or other forms of information technology.

Comments on the Paperwork requirement of this regulation should be

sent to: Daniel J. Chenok, Office of Information and Regulatory

Affairs, Office of Management and Budget, New Executive Office

Building, Room 10236, Washington, DC 20503. Written comments should be

received within 60 days of this notice.

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.

Dated: October 2, 1997.

Donna E. Shalala,

Secretary.

Accordingly, part 51 is added to title 42 of the Code of Federal

Regulations to read as follows:

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

INDIVIDUALS WITH MENTAL ILLNESS PROGRAM

Sec.

51.1 Scope.

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 [Reserved]

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]

[[Page 53565]]

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 or delay of access.

51.44 [Reserved]

51.45 Confidentiality of protection and advocacy system records.

51.46 Disclosing information obtained from a provider of mental

health services.

Authority: 42 U.S.C. 10801, et seq.

Sec. 51.1 Scope.

The provisions of this part apply to recipients of Federal

assistance under the Protection and Advocacy for Mentally Ill

Individuals Act of 1986, as amended.

Sec. 51.2 Definitions.

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

amended, the following definitions apply:

Abuse means any act or failure to act by an employee of a facility

rendering care or treatment which was performed, or which was failed to

be performed, knowingly, recklessly, or intentionally, and which

caused, or may have caused, injury or death to an individual with

mental illness, and includes but is not limited to acts such as: rape

or sexual assault; striking; the use of excessive force when placing an

individual with mental illness in bodily restrains; the use of bodily

or chemical restraints which is not in compliance with Federal and

State laws and regulations; verbal, nonverbal, mental and emotional

harassment; and any other practice which is likely to cause immediate

physical or psychological harm or result in long-term harm if such

practices continue.

Act means the Protection and Advocacy for Mentally Ill Individuals

Act of 1986, as amended, also referred to as Protection and Advocacy

for Individuals with Mental Illness Act.

ADD means the Administration on Developmental Disabilities within

the Administration for Children and Families, Department of Health and

Human Services.

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 psychotherapies, supportive or other adjunctive therapies,

medication supervision, special education and rehabilitation, even if

only ``as needed'' or under a contractual arrangement.

Center or CMHS means the Center for Mental Health Services, a

component of the Substance Abuse and Mental Health Services

Administration.

Complaint includes, but is not limited to any report or

communication, whether formal or informal, written or oral, received by

the P&A system, including media accounts, newspaper articles, telephone

calls (including anonymous calls) from any source alleging abuse or

neglect of an individual with mental illness.

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

Services.

Designated Official is the State official or public or private

entity empowered by the Governor or State legislature to be accountable

for the proper use of funds by the P&A system.

Director means the Director of the Center for Mental Health

Services, Substance Abuse and Mental Health Services Administration, or

his or her designee.

Facility includes any public or private residential setting that

provides overnight care accompanied by treatment services. Facilities

include, but are not limited to the following: general and psychiatric

hospitals, nursing homes, board and care homes, community housing,

juvenile detention facilities, homeless shelters, and jails and

prisons, including all general areas as well as special mental health

or forensic units.

Fiscal Year or FY means the Federal fiscal year (October 1-

September 30) unless otherwise specified.

Full Investigation is based upon a complaint or a determination of

probable cause and means the access to facilities, clients and records

authorized under this part that is necessary for a P&A system to make a

determination about whether an allegation of abuse or neglect is taking

place or has taken place. Full investigations may be conducted

independently or in cooperation with other agencies authorized to

conduct similar investigations.

Governor means the chief executive officer of the State, Territory

or the District of Columbia, or his or her designee, who has been

formally designated to act for the Governor in carrying out the

requirements of the Act and this part.

Individual with Mental Illness means an individual who has a

significant mental illness or emotional impairment, as determined by a

mental health professional qualified under the laws and regulations of

the State and

(1) Who is an inpatient or resident in a facility rendering care or

treatment, even if the whereabouts of such impatient or resident is

unknown;

(2) Who is in the process of being admitted to a facility rendering

care or treatment, including persons being transported to such a

facility, or

(3) Who is involuntarily confined in a detention facility, jail or

prison.

Legal Guardian, Conservator, and Legal Representative all mean an

individual whose appointment is made and regularly reviewed by a State

court or agency empowered under State law to appoint and review such

officers, and having authority to consent to health/mental health care

or treatment of an individual with mental illness. 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, or

officials responsible for the provision of health or mental health

services to an individual with mental illness, or their designees.

Neglect means a negligent act or omission by an individual

responsible for providing services in a facility rendering care or

treatment which caused or may have caused injury or death to an

individual with mental illness or which placed an individual with

mental illness at risk of injury or death, and includes, but is not

limited to, acts or omissions such as failure to: establish or carry

out an appropriate individual program or treatment plan (including a

discharge plan); provide adequate nutrition, clothing, or health care;

and the failure to provide a safe environment which also includes

failure to maintain adequate numbers of appropriately trained staff.

Private Entity means a nonprofit or for-profit corporation,

partnership or other nongovernmental organization.

Probable cause means reasonable grounds for belief that an

individual with mental illness has been, or may be at significant risk

of being subject to abuse or neglect. The individual making such

determination may base the decision on reasonable inferences drawn from

his or her experience or training regarding similar incidents,

conditions or problems that are usually associated with abuse or

neglect.

Program means activities carried out by the P&A system and

operating as part of a P&A system to meet 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.

[[Page 53566]]

System means the organization or agency designated in a State to

administer and operate a protection and advocacy program under Part C

of the Developmental Disabilities Assistance and Bill of Rights Act (42

U.S.C. 6041, 6042) and thereby eligible to administer a program for

individuals with mental illness.

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 titles 42 and 45 CFR apply to grants funded

under this part.

42 CFR Part 50, Subpart D.

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 Developmental

Disabilities Assistance and Bill of Rights Act (42 U.S.C. 6041, et

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

(b) The P&A system must meet the requirements of sections 105 and

111 of the Act (42 U.S.C. 10805 and 10821) and that P&A system must be

operational. Each system shall submit an application at the beginning

of each PAIMI authorization period. This application shall contain at a

minimum the program priorities and budget for the first year of the

authorization period and the required assurances and certifications.

Thereafter, the system shall submit yearly updates of the budget and

program priorities for the upcoming fiscal year through its annual

report.

(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 this part shall be submitted by the P&A 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 affect the functioning of the P&A system, in

which case an amendment will be required 30 days prior to the effective

date of the change. The P&A system shall also provide the Department

the name of the designated official.

(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 P&A system. The Governor may provide this assurance

along with the assurances provided to ADD under 45 CFR part 1386, as

long as it can reasonably be construed as applying to the PAIMI

program. Any future ``supplement and not supplant'' assurance shall

explicitly refer to the PAIMI program.

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 P&A system,

organization or individual to petition Congress or any other government

body or official using other resources.

(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 P&A system is a public entity, that P&A system

shall not be required by the State to obligate more than five percent

of its annual allotment for State oversight administrative expenses

under this grant 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 as defined in Sec. 51.27.

(f) Allotments may be used to pay the otherwise allowable costs

incurred by a P&A system in bringing lawsuits in its own right to

redress incidents of abuse or neglect, discrimination, and other rights

violations impacting on individuals with mental illness and when it

appears on behalf of named plaintiffs or a class of plaintiffs for such

purposes.

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 P&A system

governing authority, together with the 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), including persons who report matters which

occurred while they were individuals with mental illness;

(2) Persons who were individuals with mental illness who are

residents of the State, but only with respect to matters which occur

within 90 days after the date of the discharge of such individuals from

a facility providing care or treatment; and

(3) Individuals with mental illness in Federal facilities rendering

care or treatment who request representation by the eligible P&A

system. Representation may be requested by an individual with mental

illness, or by a legal guardian, conservator or legal representative.

[[Page 53567]]

(b) To provide representation of clients in civil commitment

proceedings if the P&A system is acting on behalf of an eligible

individual to obtain judicial review of his or her commitment in order

to appeal or otherwise challenge acts or omissions which have subjected

the individual to abuse or neglect or otherwise violated his or her

rights. This restriction does not prevent a P&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 is in the format designated by the Secretary.

Sec. 51.9 [Reserved]

Sec. 51.10 Remedial actions.

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

or to submit requested information and documentation, corrective action

plans and ongoing implementation status reports in response to Federal

review and monitoring activities or to satisfy any other requirement of

the Act, this part, or other requirements, may be considered a breach

of the terms and conditions of the grant award and may required

remedial action, such as the suspension or termination of an active

grant, withholding of payments or converting to a reimbursement method

of payment. Any remedial actions shall be taken consistent with 45 CFR

Part 74 and 42 CFR Part 50, as appropriate.

Secs. 51.11-51.20 [Reserved]

Subpart B--Program Administration and Priorities

Sec. 51.21 Contracts for program operations.

(a) An eligible P&A system should work cooperatively with existing

advocacy agencies and groups and, where appropriate, consider entering

into contracts for protection and advocacy services with organizations

already working on behalf of individuals with metal 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 P&A system may contract for the operation of all or

part of its program with another public or private nonprofit

organization with demonstrated experience in working with individuals

with mental illness provided that:

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

requirements of section 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 P&A system institutes oversight and monitoring

procedures which ensure that this system will be able to meet all

applicable terms, conditions and obligations of the Federal grant;

(3) The eligible P&A 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 and conduct full investigations on behalf of

individuals with mental illness; and

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

family members of clients served by the P&A 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 P&A system shall have a governing authority responsible

for its planning, designing, implementing and functioning. It shall,

jointly with the advisory council, annually establish program

priorities and policies.

(b) If the P&A system is organized with a multi-member governing

board:

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

selection of its governing board members and for the board evaluation

of the P&A system director. The terms of board members shall be

staggered and for 4 years except that any member appointed to fill a

vacancy for an unexpired term shall serve for the remainder of such

term. A member who has been appointed for a term of 4 years may not be

reappointed to the governing board during the 2-year period beginning

on the date on which such 4-year term expired.

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

are knowledgeable about the needs of the clients served by the P&A

system and shall include a significant representation of individuals

with mental illness who are, or have been eligible for services, or

have received or are receiving mental health services, and family

members, guardians, advocates, or authorized representatives of such

individuals.

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

entity, the chairperson of the 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) Any member of the advisory council may also serve on the

governing board.

Sec. 51.23 Advisory council.

(a) Each P&A system shall establish an advisory council to:

(1) Provide independent advice and recommendations to the system.

(2) Work jointly with the governing authority in the development of

policies and priorities.

(3) Submit a section of the system's annual report as required

under Sec. 51.8.

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

professionals, individuals from the public who are knowledgeable about

mental illness, the advocacy needs of persons with mental illness and

have demonstrated a substantial commitment to improving mental health

services, 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 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.

At least one family member shall be a primary care giver for an

individual who is currently a minor child or youth who is receiving or

has received mental health services;

(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;

[[Page 53568]]

(3) The advisory council shall meet no less than three times

annually. The terms of council members shall be staggered and for 4

years except that any member appointed to fill a vacancy for an

unexpired term shall serve for the remainder of such term. A member who

has been appointed for a term of 4 years may not be reappointed to the

council during the 2-year period beginning on the date on which such 4-

year term expired.

(c) Each P&A system shall provide its advisory council with

reports, materials and fiscal data to enable review of existing program

policies, priorities and performance outcomes. 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 category (e.g., salary and wages, contract

for services, administrative expenses) including the amount allotted

for training of each the advisory council, governing board and staff.

(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 child

care (or its equivalent for the child's travel and subsistence

expenses) for their dependents with mental illness or developmental

disabilities.

(2) Each P&A 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 Secs. 51.31(e) and 51.6(e).

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, to implement the established priorities. In

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

case selection criteria, the availability of staff 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. Systemic and legislative activities shall also be addressed in

the development and implementation of program priorities.

(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 P&A 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 P&A system shall establish procedures to address grievances

from:

(1) Clients or prospective clients of the P&A 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 P&A 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 from any final staff

review and/or determination; in cases where the governing authority is

the director of the P&A system, the final review and/or determination

shall be made by a superior of the governing authority, e.g., a

supervisor, or by an independent entity, e.g., an appointed board or

committee.

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

advisory council describing the grievances received and processed and

their resolution;

(3) Identification of individuals responsible for review;

(4) A timetable to ensure prompt notification concerning the

grievance procedure to clients, prospective clients or persons denied

representation, and to ensure prompt resolution;

(5) A written response to the grievant; and

(6) Protection of client confidentiality.

Sec. 51.26 Conflicts of interest.

The P&A system must 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 P&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:

(a)(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.

(2) This training may be provided by individuals who have received

or are receiving mental health services and family members of such

individuals.

(b) 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.

(c) Training to conduct full investigations of abuse or neglect.

Secs. 51.28-51.30 [Reserved]

Subpart C--Protection and Advocacy Services

Sec. 51.31 Conduct of protection and advocacy activities.

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

professional ethics, a P&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 to address

abuse, neglect or other violations of rights.

(b) A P&A system shall establish policies and procedures to guide

and coordinate advocacy activities. The P&A system shall not implement

a policy or practice restricting the remedies which may be sought on

behalf of individuals with mental illness or compromising the authority

of the P&A system to pursue such remedies through litigation, legal

action or other forms of advocacy. However, this requirement does not

prevent the P&A system from placing limitations on case or client

acceptance criteria developed as part of the annual

[[Page 53569]]

priorities. Prospective clients must be informed of any such

limitations at the time they request service.

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

presence in residential mental health care or treatment facilities, and

relevant hospital units.

(d) 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.

(e) A P&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, or board or council members, to increase knowledge about

protection and advocacy issues, to enhance leadership capabilities, or

to promote Federal-State and intra-State cooperation on matter 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 P&A system.

(f) A P&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. A P&A system shall carry out systemic advocacy--

those efforts to implement changes in policies and practices of systems

that impact persons with mental illness.

(g) Determination of ``probable cause'' may result from P&A system

monitoring or other activities, including observation by P&A system

personnel, and reviews of monitoring and other reports prepared by

others whether pertaining to individuals with mental illness or to

general conditions affecting their health or safety.

(h) A P&A which is a public P&A system shall be free from hiring

freezes, reductions in force, prohibitions on staff travel, or other

policies imposed by the State to the extend that such policies would

impact program staff or activities funded with Federal dollars and

would prevent the P&A system from carrying out its mandates under the

Act.

(i) A P&A system may exercise its authority under State law where

the authority exceeds the authority required by the Act. However, State

law must not diminish the required authority of the Act.

Sec. 51.32 Resolving disputes.

(a) Each P&A 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 should be resolved whenever possible through

nonadversarial process 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 or the legal guardian,

conservator or other legal representative chose to involve the family

member.

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

remedies, where appropriate, prior to initiating legal action in a

Federal or State court.

(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 nor does it apply in circumstances where

administrative procedures do not exist. If in pursing administrative

remedies, the P&A system determines that any matter with respect to an

individual with mental illness with mental illness with not be resolved

within a reasonable time, the P&A system may pursue alternative

remedies, including initiating legal action.

(e) A P&A system shall be held to the standard of exhaustion of

remedies provided under State and Federal law. The Act imposes no

additional burden respecting exhaustion of remedies.

Secs. 51.33-51.40 [Reserved]

Subpart D--Access to Records, Facilities and Individuals

Sec. 51.41 Access to records.

(a) Access to records shall be extended promptly to all authorized

agents of a P&A system.

(b) A P&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 P&A 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 P&A 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

or one of its political subdivisions; and

(iii) A complaint or report has been received and the P&A system

has determined that there is probable cause to believe that the

individual has been or may be subject to abuse or neglect.

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

legal representative, with respect to whom a complaint or report has

been received by the P&A system and with respect to whom the P&A 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 exists:

(i) The P&A system has made a good faith effort to contact the

representative upon prompt receipt of the representative's name and

address;

(ii) The P&A system has made a good faith effort to offer

assistance to the representative to resolve the situation; and

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

the individual.

(c) Information and individual records, whether written or in another

medium, draft or final, including handwritten notes, electronic files,

photographs or video or audio tape records, which shall be available to

the P&A system under the Act shall include, but not be limited to:

(1) Information and individual records, obtained in the course of

providing intake, assessment, evaluation, supportive 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. This includes records stored or maintained

in locations other than the facility or program as long as the system

has obtained appropriate consent consistent with section

[[Page 53570]]

105(a)(4) of the Act. The system shall request of facilities that in

requesting records from service providers or other facilities on

residents that they indicate in the release form the records may be

subject to review by a system.

(2) Reports prepared by an agency charged with investigating abuse

neglect, or injury occurring at a facility rendering care or treatment,

or by or for the facility itself, that describe any or all of the

following:

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

(ii) The steps taken to investigate the incidents;

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

maintained by the facility, in connection with such reports of

incidents; or

(iv) Supporting information that was relied upon in creating a

report, including all information and records used or reviewed in

preparing reports of abuse, neglect or injury such as records which

describe persons who were interviewed, physical and documentary

evidence that was reviewed, and the related investigative findings.

(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 P&A system shall have reasonable access and authority to

interview and examine all relevant records of any facility service

recipient (consistent with the provisions of section 105(a)(4) of the

Act) or employee.

(e) A P&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) Access to facilities and residents shall be extended to all

authorized agents of a P&A system.

(b) A P&A system shall have reasonable unaccompanied access to

public and private facilities and programs in the State which render

care or treatment for individuals with mental illness, and to all areas

of the facility which are used by residents or are accessible to

residents. The P&A system shall have reasonable unaccompanied access to

residents at all times necessary to conduct a full investigation of an

incident of abuse or neglect. This authority shall include the

opportunity to interview any facility service recipient, employee, or

other persons, including the person thought to be the victim of such

abuse, who might be reasonably believed by the system to have knowledge

of the incident under investigation. Such access shall be afforded,

upon request, by the P&A system when:

(1) An incident is reported or a complaint is made to the P&A

system;

(2) The P&A system determines there is probable cause to believe

that an incident has or may have occurred; or

(3) The P&A system determines that there is or may be imminent

danger of serious abuse or neglect of an individual with mental

illness.

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

section, a P&A system shall have reasonable unaccompanied access to

facilities including all area which are used by residents, are

accessible to residents, and to programs and their residents at

reasonable times, which at a minimum shall include normal working hours

and visiting hours. Residents include adults or minors who have legal

guardians or conservators. P&A activities shall be conducted so as to

minimize interference with facility programs, respect residents'

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

interview. This access is for the purpose of:

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

addressing the needs of individuals with mental illness, and

information and training about individual rights and the protection and

advocacy services available from the P&A system, including the name,

address, and telephone number of the P&A system.

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

residents; and

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

which are used by residents or are accessible to residents.

(d) Unaccompanied access to residents shall include the opportunity

to meet and communicate privately with individuals regularly, both

formally and informally, by telephone, mail and in person. Residents

include minors or adults who have legal guardians or conservators.

(e) The right of access specified in paragraph (c) of this section

shall apply despite the existence of any State or local laws or

regulations which restrict informal access to minors and adults with

legal guardians or conservators. The system shall make very effort to

ensure that the parents of minors or guardians of individuals in the

care of a facility are informed that the system will be monitoring

activities at the facility and may in the course of such monitoring

have access to the minor or adult with a legal guardian. The system

shall take no formal action on behalf of individuals with legal

guardians or conservators, or initiate a formal attorney/client or

advocate/client relationship without appropriate consent, except in

emergency situations as described in Sec. 51.41(b)(3).

(f) A P&A system providing representation to individuals with

mental illness in Federal facilities shall have all the rights and

authority accorded other representatives of residents of such

facilities pursuant to State and Federal laws.

Sec. 51.43 Denial of delay or access.

If a P&A system's access to facilities, programs, residents or

records covered by the Act or this part is delayed or denied, the P&A

system shall be provided promptly with a written statement of reasons,

including, in the case of a denial for alleged lack of authorization,

the name, address and telephone number of the legal guardian,

conservator, or other legal representative of an individual with mental

illness. Access to facilities, records or residents shall not be

delayed or denied without the prompt provision of written statements of

the reasons for the denial.

Sec. 51.44 [Reserved]

Sec. 51.45 Confidentiality of protection and advocacy system records.

(a) Records maintained by the P&A system are the property of the

P&A system which must protect them from loss, damage, tampering or use

by unauthorized individuals

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