[Federal Register Volume 62, Number 199 (Wednesday, October 15, 1997)]
[Rules and Regulations]
[Pages 53548-53571]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-26835]
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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
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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. The P&A system must:
(1) Except as provided elsewhere in this section, keep confidential
all records and information, including information contained in any
automated electronic database pertaining to:
(i) Clients to the same extent as is required under Federal or
State laws for a provider of mental health services;
(ii) Individuals who have been provided general information or
technical assistance on a particular matter;
(iii) Identity of individuals who report incidents of abuse or
neglect or furnish information that forms the basis for a
[[Page 53571]]
determination that probable cause exists; and
(iv) Names of individuals who are residents and provide information
for the record.
(2) Have written policies governing access to, storage of,
duplication and release of information from client records; and
(3) Obtain written consent from the client, if competent, or from
his or her legal representative, from individuals who have been
provided general information or technical assistance on a particular
matter and from individuals who furnish reports or information that
forms the basis for a determination of probable cause, before releasing
information to individuals not otherwise authorized to receive it.
(b) Nothing in this subpart shall prevent the P&A system from. (1)
Issuing a public report of the results of an investigation which
maintains the confidentiality of the individuals listed in paragraph
(a)(1) of this section or,
(2) Reporting the results of an investigation which maintains the
confidentiality of individual service recipients to responsible
investigative or enforcement agencies should an investigation reveal
information concerning the facility, its staff, or employees warranting
possible sanctions or corrective action. this information may be
reported to agencies responsible for facility licensing or
accreditation, employee discipline, employee licensing or
certification, or criminal prosecution.
(c) For purposes of any periodic audit, report, or evaluation of
the performance of the P&A system, the Secretary shall not require the
P&A system to disclose the identity, or any other personally
identifiable information, of any individual requesting assistance under
a program. This requirement does not restrict access by the Department
or other authorized Federal or State officials to client records or
other records of the P&A system when deemed necessary for audit
purposes and for monitoring P&A system compliance with applicable
Federal or State laws and regulations. The purpose of obtaining such
information is solely to determine that P&A systems are spending their
grant funds awarded under the Act on serving individuals with mental
illness. Officials that have access to such information must keep it
confidential to the maximum extent permitted by law and regulations. If
photostatic copies of materials are provided, then the destruction of
such evidence is required once such reviews have been completed.
(d) Subject to the restrictions and procedures set out in this
section, implementing section 106 (a) and (b) of the Act (42 U.S.C.
10806 (a) and (b)), this part does not limit access by a legal
guardian, conservator, or other legal representative of an individual
with mental illness, unless prohibited by State or Federal law, court
order or the attorney-client privilege.
Sec. 51.46 Disclosing information obtained from a provider of mental
health services.
(a) Except as provided in paragraph (b) of this section, if a P&A
system has access to records pursuant to section 105(a)(4) of the Act
(42 U.S.C. 10805(a)(4)) which, under Federal or State law, are required
to be maintained in a confidential manner by a provider of mental
health services, it may not disclose information from such records to
the individual who is the subject of the information if the mental
health professional responsible for supervising the provision of mental
health services to that individual has given the P&A system a written
determination that disclosure of such information to the individual
would be detrimental to the individual's health. The provider shall be
responsible for giving any such written determination to the P&A system
at the same time as access to the records containing the information is
granted.
(b)(1) If the disclosure of information has been denied under
paragraph (a) of this section to an individual, the following
individuals or the P&A system may select another mental health
professional to review the information and to determine if disclosure
of the information would be detrimental to the individual's health:
(i) Such individual;
(ii) The legal guardian, conservator or other legal representative
of the individual; or
(iii) An eligible P&A system, acting on behalf of an individual:
(A) Whose legal guardian is the State; or
(B) Whose legal guardian, conservator, or other legal
representative has not, within a reasonable time after the denial of
access to information under paragraph (a), selected a mental health
professional to review the information.
(2) If such mental health professional determines, based on
professional judgment, that disclosure of the information would not be
detrimental to the health of the individual, the P&A system may
disclose such information to the individual.
(c) The restriction in paragraph (b) of this section does not
affect the P&A system's access to the records.
[FR Doc. 97-26835 Filed 10-9-97; 8:45 am]
BILLING CODE 4160-20-M
