[Federal Register Volume 59, Number 239 (Wednesday, December 14, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-30411]
[[Page Unknown]]
[Federal Register: December 14, 1994]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Public Health Service
Substance Abuse and Mental Health Services Administration
42 CFR Part 51
RIN 0905-AD99
Requirements Applicable to Protection and Advocacy of Individuals
With Mental Illness; Notice of Proposed Rulemaking
agency: Substance Abuse and Mental Health Services Administration, PHS,
HHS.
action: Notice of proposed rulemaking.
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summary: The 1991 Protection and Advocacy for Individuals with Mental
Illness (PAIMI) Act reauthorization stipulated that the Secretary shall
promulgate regulations for the implementation of authorized activities
of the Protection and Advocacy (P&A) Systems. Thus, this rule proposes
regulations to implement Titles I and III of the PAIMI Act of 1986, as
amended and will govern the authorized activities carried out by the
Protection and Advocacy Systems to protect and advocate the rights of
individuals with mental illness. Authorized activities include
investigation of incidents of abuse and neglect and the pursuit of
legal, administrative and other appropriate remedies to ensure the
protection of the rights of individuals with mental illness in
facilities providing care or treatment. In accordance with the
provisions set forth, the system must be given access to records,
facilities and individuals with mental illness. Each designated system
must have a governing authority or board whose members broadly
represent and are knowledgeable about the needs of its clients. In
addition, the system must establish an advisory council to the PAIMI
program. PAIMI program priorities are developed by the governing
authority jointly with the advisory council.
The proposed regulations are intended to provide basic definitions
and to clarify the requirements of the PAIMI Act governing the
authorized activities and provisions to be carried out by the P&A
Systems to protect and advocate the rights of individuals with mental
illness.
The proposed regulations are not intended to preempt further
regulation in the field by States. Consistent with the established
principles of Constitutional law, the proposed Federal regulations will
supersede State law to the extent that there is a conflict.
dates: To ensure consideration, comments must be submitted on or before
February 13, 1995.
addresses: Please address comments to: Director, Center for Mental
Health Services, 5600 Fishers Lane, Room 15-105, Rockville, Maryland
20857.
Two weeks after the close of the comment period, comments and
letters addressing the proposed PAIMI program regulations, will be
available for public inspection in the Office of Consumer, Family, and
Public Information, 5600 Fishers Lane, Room 15-81, Rockville, Maryland
20857.
FOR FURTHER INFORMATION CONTACT:
Ms. Natalie Reatig, Chief, Protection and Advocacy for Individuals with
Mental Illness Program, (301) 443-3667 (Voice). This is not a toll-free
number. This document is available in accessible formats (cassette
tape, braille, large print or computer disk) upon request.
SUPPLEMENTARY INFORMATION:
Program History
In 1975, the Department of Health and Human Services (the
Department) established a program pursuant to Part C of the
Developmental Disabilities Assistance and Bill of Rights Act (DD Act)
[42 U.S.C. 6041, et seq.], providing formula grant support to the
Protection and Advocacy System (system) designated by each State to
protect and advocate the rights of persons with developmental
disabilities. This program (PADD) is presently administered by the
Administration on Developmental Disabilities (ADD).
Since 1986, the Department has provided additional formula grant
funds to the same State-designated systems to protect and advocate the
rights of individuals with mental illness pursuant to the Protection
and Advocacy for Individuals with Mental Illness (PAIMI) Act of 1986,
as amended [42 U.S.C. 10801 et seq.]. This program is administered by
the Center for Mental Health Service (CMHS) in the Substance Abuse and
Mental Health Services Administration (SAMHSA).
These proposed regulations govern activities carried out by the P&A
systems under the PAIMI Act to protect and advocate the rights of
individuals with mental illness. ADD will also be proposing to amend
its regulations governing system operations under the DD Act to
implement recent amendments and clarify certain requirements.
Description of PAIMI Program
Formula grants are made to the system designated by the State under
Part C of the DD Act to protect and advocate the rights of individuals
with mental illness. The system must have the authority to investigate
incidents of abuse and neglect and to pursue legal, administrative and
other appropriate remedies to ensure the protection of the rights of
individuals with mental illness in facilities providing care or
treatment. In accordance with the provisions set forth, the system must
be given access to records, facilities and individuals with mental
illness.
Each designated system must have a governing authority or board
whose members broadly represent and are knowledgeable about the needs
of its clients. In addition, the system must establish an advisory
council to the PAIMI program. PAIMI program priorities are developed by
the governing authority jointly with the advisory council.
A section-by-section discussion of the proposed rule follows:
Part 51--Requirements Applicable to the Protection and Advocacy for
Individuals With Mental Illness Program
Applicability
Section 51.1, as proposed, indicates that requirements are
applicable to State designated systems carrying out a protection and
advocacy program for individuals with mental illness funded under the
Act.
Definitions
Section 51.2 proposes definitions for terms not defined in the Act.
Definitions of ``ADD,'' ``Department,'' and ``Fiscal Year'' are the
same as the definitions in ADD regulations governing protection and
advocacy systems. The definitions of ``Governor'' and ``System'' have
the exact meaning as the definition in ADD regulations and differ only
slightly in phrasing. ``System'' refers to the P&A agency designated by
the Governor under the Developmental Disabilities Assistance and Bill
of Rights Act [42 U.S.C. 6041, 6042] which administers both DD and
PAIMPI programs. ``Program,'' as used in the regulations, denotes
activities involved with carrying out a protection and advocacy program
for individuals with mental illness funded under the Act. ``Act,''
``Center'' and ``Director'' refer to the Protection and Advocacy for
Individuals with Mental Illness Act, as amended, the Center for Mental
Health Services and its Director, respectively.
In keeping with Congressional intent, Senate Report (S. Rept.) 102-
114 on the Protection and Advocacy for Mentally Ill Individuals
Amendments Act of 1991 at 8, the regulations propose a definition of
``care or treatment.'' The proposed definition of ``care or treatment''
of an individual with mental illness is based on the survey format
Mental Health Service System Reports, ``Data Standards for Mental
Health Decision Support Systems,'' (``Data Standards'') used by the
National Institute of Mental Health and the MCHS. It was developed
through consensus in the mental health field. The definition of ``care
or treatment,'' operating in conjunction with the term ``facilities,''
which includes homeless shelters, jails and prisons, provides a broad
range of access for P&A systems to individuals with mental illness.
Facilities that render care or treatment under Sec. 102(4) of the Act
[42 U.S.C. 10802] are intended to mean those that provide overnight
care accompanied by services to prevent, identify, reduce or stabilize
mental illness or emotional impairment, (``Data Standards'' at 16).
The proposed definitions of ``public entity'' and ``private
entity'' distinguish between an organizational unit of a State or local
government or a quasi-public organization exercising one or more
governmental powers, and a nonprofit or for-profit corporation,
partnership or other nongovernmental organization.
The proposed definition of ``legal guardian, conservator, legal
representative'' to include individuals appointed and regularly
reviewed by a State court or agency empowered under State law to
appoint and review such officers is widely used throughout the program.
It originated in House Report (H. Rept.) 99-401 at 7 (accompanying H.R.
3492 preliminary to passage of Pub.L. 99-319, Nov. 21, 1985). It is
intended to include only those individuals who are given the legal
authority to make all decisions on behalf of an individual with mental
illness. Persons acting only as a representative payee or acting only
to handle financial matters, attorneys or others acting on behalf of an
individual with mental illness in individual legal matters, the State,
or officials responsible for the provision of health or mental health
services to the individual and other persons who are not legally
appointed are not included.
Subpart A--Basic Requirements
Formula for Determining Allotments
Section 51.3, as proposed, states that funds shall be apportioned
as prescribed by the Act.
Grants Administration Requirements
Section 51.4, as proposed, lists parts of Title 45 CFR which apply
to PAIMI programs funded under the Act.
Eligibility for Allotment
Section 51.5, as proposed, requires systems designated by the
Governor of a State under Part C of the DD Act [42 U.S.C. 6041, et
seq.] to provide assurances of compliance with the PAIMI Act and
regulations and to be operational in order to receive the State
allotment for a PAIMI program. In addition, the Governor must give a
written assurance that the allotment will be used to supplement and not
to supplant the level of non-Federal funds available in the State to
protect and advocate the rights of individuals with mental illness. If
the Governor provides this assurance at the same time as he/she
provides assurances to ADD under 45 CFR part 1386, the system shall
submit a copy of the Governor's assurance as part of its application
for PAIMI funds.
Use of Allotments
Section 51.6, as proposed, delineates certain impermissible uses of
grant funds. Allotments may not be used: (1) supplant the level of non-
Federal funds used for PAIMI activities; (2) support lobbying
activities to influence proposed or pending Federal legislation or
appropriations; or (3) produce or distribute written, audio or visual
materials intended or designed to support or defeat any candidate for
public office. However, program activities may include ``monitoring,
evaluating and commenting upon the development and implementation of
Federal, State, and local laws, regulations, State plans, budgets,
policies, programs, hearings, levies and community action which will
affect mentally ill persons [individuals with mental illness].'' [S.
Rept. 99-109 on Protection and Advocacy for Mentally Ill Persons Act of
1985 at 9 (July 25, 1985); see also, H. Rept. 99-401 at 9].
Section 51.6(d), as proposed, also clarifies that the restriction
in section 104(b)(1) of the Act [42 U.S.C. 10804(b)(1)], that a
designated State system may use no more than five percent of the annual
allotment for administrative expenses which includes State
administrative and monitoring costs but does not include costs of
training and technical assistance or the salaries, wages or benefits of
program staff. This will assure that Federal funds for eligible systems
will be used for protection and advocacy services, ``to the greatest
extent possible,'' in keeping with the legislative intent (S. Rept. 99-
109 at 12). No funds may be used by the State for administrative costs
where the eligible system is not a State agency (H. Rept. 99-401 at 9).
Section 51.6(e), as proposed, also implements restrictions found in
section 104(b)(2) of the Act [42 U.S.C. 10804(b)]. Under section
104(b)(2) of the Act [42 U.S.C. 10804(b)(2)], no more than ten percent
of an annual allotment may be used for providing technical assistance
and training. This may include a portion of the salaries and
administrative support of system or program staff who provide training
or technical assistance to other staff, contractors, or members of the
governing board or advisory council as a significant component of their
responsibilities.
Eligibility for Services
Under section 51.7, as proposed, protection and advocacy services
funded under the Act must be provided in accordance with program
priorities and policies established by the governing authority jointly
with the mental health advisory council. Such protection and advocacy
services may be provided to an individual with mental illness who is a
resident or inpatient in a facility providing care or treatment; who is
in the process of being admitted to a facility rendering care or
treatment, including persons being transported to such a facility; or,
who is involuntarily confined in a municipal detention facility for
reasons other than serving a sentence resulting from conviction for a
criminal offense. Federal funds may also be used to provide services to
an otherwise eligible individual who is a resident in a Federal
facility providing care or treatment, upon the request of that
individual, or that individual's legal guardian, conservator, or other
legal representative. Representatives of such individuals are accorded
all the rights and authority accorded other representatives of
residents of such activities pursuant to State and other Federal laws.
Activities in federal facilities are subject to the system's
appropriately established priorities and policies.
Protection and advocacy services may be provided to individuals
with regard to incidents which occurred while they were eligible under
the Act, even though the incident is reported to the P&A system after
their discharge from the facilities or after the expiration of their
90-day post discharge eligibility. This reflects the legislative
concern that appropriate discharge planning and placement take place in
that attempts to withdraw mental health care or treatment services from
individuals with mental illness without proper preparation can be as
harmful as neglectful isolation or inappropriate treatment (H. Rept.
99-401 at 8-9). This also reflects the legislative intent that the
Act's restriction on periods of coverage is not a limitation on the
time at which remedies may be sought nor a limitation on the time
during which actions may extend. Other laws respecting statutes of
limitations and requirements for settlement and adjudication are not
altered by the Act (H. Rept. 99-401 at 9).
In addition, allotments may be used to provide representation in
civil commitment proceedings where this is the means used to appeal or
otherwise challenge procedures which have subjected the individual to
abuse or neglect or otherwise violated his or her rights.
Annual Reports
Section 51.8, as proposed, describes the content and other
specifications of the annual report required by section 105(a)(7) of
the Act [42 U.S.C. 10805(a)(7)].
Financial Status Reports
Section 51.9, as proposed, requires that a grantee shall submit a
financial status report in accordance with 45 CFR 74.73
Remedial Actions
Section 51.10, as proposed, provides that noncompliance with the
provisions of the Act, regulations or other established grant policies
and procedures, including reporting requirements, may be considered a
material breach of the terms and conditions of the grant award which
can result in remedial actions.
Sections 51.11-51.20 Reserved
Subpart B--Program Administration and Priorities
Contracts for Program Operations
Section 51.21(a), as proposed, permits a system to contract with
one or more public or private nonprofit organizations to carry out all
or a portion of the program's protection and advocacy services as long
as the system institutes oversight and monitoring procedures. The
system and the provider must enter into a written agreement which
specifies the protection and advocacy services to be performed and
evidences that the provider can meet the terms and conditions of the
grant.
Eligible systems are encouraged under section 104(a)(2) of the Act
[42 U.S.C. 10804(a)(2)] to enter into program contracts with groups run
by individuals who are receiving or have received mental health
services or by family members of such individuals, as well as with
other organizations with relevant expertise. Such arrangements build on
the experience of these groups and foster cooperative efforts (S. Rept.
99-109 at 9-10).
Governing Authority
Section 51.22, as proposed, describes the composition of the
governing authority and its program oversight responsibilities. Under
section 105(c) of the Act [42 U.S.C. 10805(c)], a single governing
authority oversees both PAIMI and DD activities. Members of any multi-
member governing board which functions as the governing authority must
``broadly represent or [be] * * * knowledgeable about the needs of the
clients served by the system.'' To ensure this, the Act specifies that
members who are broadly representative include individuals who have
received or are receiving mental health services and family members of
such individuals. [See section 105(c)(1)(B) of the Act [42 U.S.C.
10805(c)(1)(B)]].
Further, the proposed regulation specifies that an individual or
family member who serves on a system's governing board in a
representative capacity must have direct experience with the needs of
clients served by the system. And, if the governing authority is a
nonprofit entity, the chairperson of the program's advisory council
must be a member. Other advisory council members are also eligible to
serve on the governing board. In addition, each system is required to
establish its own policies and procedures for the selection and service
of governing board members. These requirements implement 1988
amendments, found in section 105(c)(1)(B) of the Act [42 U.S.C.
10805(c)(1)(B)]. They are intended to ``ensure that protection and
advocacy systems, which historically served persons with developmental
disabilities, have added to their governing boards representatives of
the mental health community who are knowledgeable about the special
advocacy needs of mental ill individuals, including individuals who
have received or are receiving mental health services and family
members of such individuals.'' [S. Rept. 100-454 on Protection and
Advocacy for Mentally Ill Individuals Amendments Act of 1988, at 8
(Aug. 5, 1988)]. Finally, continuing efforts should be made to increase
the involvement of ethnic and racial minorities in program governance
and administration to assure that the program addresses the needs of
minority individuals with mental illness (H. Rept. 102-319 of the
Protection and Advocacy for Mentally Ill Individuals Amendments Act of
1991 at 8; S. Rept. 102-114 at 7).
Advisory Council
Section 51.23, as proposed, implements requirements, found in
section 105(a)(6) of the Act [42 U.S.C. 10805(a)(6)], for an advisory
council to advise the system on policies and priorities governing
protection and advocacy activities for individuals with mental illness.
The council membership should be broadly representative of persons and
groups who are knowledgeable about mental illness and the needs of the
clients served by the system (S. Rept. 99-109 at p. 10-11). At least 60
percent of the council members, including the chairperson, must be
individuals who have received or are receiving mental health services,
or family members of such individuals. Such persons, have a ``valuable
perspective on the advocacy needs of individuals with mental illness,
as well as on potential priority areas for the system'' (S. Rept. 100-
454 at 9).
The statutorily-based requirement that such persons constitute
three/fifths of the council membership is designed to assure that their
experience and knowledge will inform program priorities and policies.
In addition, continuing efforts should be made to increase the
involvement of ethnic and racial minorities in program governance and
administration to assure that the program addresses the needs of
minority individuals with mental illness (H. Rept. 102-319 at 8; S.
Rept. 102-114 at 7).
Each system shall, at least annually, provide the advisory council
with reports, materials and fiscal data to assist the members in
carrying out their responsibilities. It shall also establish policies
and procedures for reimbursing expenses incurred by council members,
including travel costs and costs of caring for family members with
mental illness or developmental disabilities during the activity
period, so as to enable those with limited financial resources to
participate fully in council activities.
Program Priorities
Section 51.24, as proposed, implements requirements, found in
sections 105(a)(6)(A) and 105(c)(2)(B) of the Act [42 U.S.C.
10805(a)(6)(A) and 10805(c)(2)(B)], mandating that the policies and
priorities which will govern the program be established by the
governing authority jointly with the advisory council. The governing
authority should engage the full and active participation of the
advisory council in this process (S. Rept. 100-454 at 8).
The annual priorities must specify the short-term goals and
objectives of the program and have measurable outcomes, as is done in
setting priorities for DD programs. Case selection criteria and the
availability of staff and monetary resources must be considered.
Attention should also be focused on the special problems and cultural
barriers that individuals with mental illness who have multiple
handicaps or who are members of racial or ethnic minorities, face in
obtaining mental health care and treatment.
Priorities are to be reviewed annually by the governing authority
and the advisory council and revised as necessary. Public comment is an
important part of this annual review. In each system, procedures should
be established which afford persons with mental illness and family
members or their representatives, as well as other interested persons,
a chance to comment, in writing or in person, on existing and proposed
priorities and policies prior to adoption or reconfirmation each year.
The annual program performance report shall include a statement of the
priorities and shall address any comments received from the public.
These requirements are similar to those established for DD programs (S.
Rept. 100-454 at 10).
Grievance Procedure
Section 51.25, as proposed, implements requirements, found in
section 105(a)(9) of the Act [42 U.S.C. 10805(a)(9)], for grievance
procedures that will address two classes of complaints: (1) complaints
of clients or prospective clients directed to whether or not eligible
individuals with mental illness in the State have full access to the
services of the system; (2) complaints of individuals who have received
or are receiving mental health services, their family members or
representatives of such individuals or family members directed to
whether or not the eligible system is operating in compliance with the
Act.
Each system is responsible for structuring procedures which satisfy
the statutory objectives of each class of complaint. Some systems have
established a bifurcated process; others have a single process with
some steps applying only to certain types of complaints. These or other
procedures may be developed as long as the process includes for each
class of complaint (1) an appeal to the governing authority from any
final staff review or determination; (2) annual, or more frequent
reports to the governing authority and the mental health advisory
council describing the content of the complaints received, the
grievances processed and the resolution; (3) identification of
individuals responsible for review; (4) a timetable to assure prompt
resolution; (5) a written response to the grievant; and (6) protection
of client confidentiality. Measures designed to protect client
confidentiality should ensure that a complaining client or family
member will not be entitled to confidential information concerning any
client without that client's consent, or, if the client is legally
incompetent or a minor, without the consent of the legal guardian or
representative.
Conflicts of Interest
Section 51.26, as proposed, recommends that each system establish
policies and procedures to avoid actual or apparent conflict of
interest involving clients, employees, contractors and subcontractors,
and members of the governing authority and advisory council. Those
policies and procedures should prohibit the participation of employees
and members of the governing authority or advisory council in matters
affecting particular contracts and subcontracts, reimbursement and
expenses and the employment or termination of staff if the covered
person or a relative could benefit financially or suffer a financial
loss. Public Health Service (PHS) Grants Policy Statement 8-18 lists
additional matters that should be covered by such policies.
Training
Section 51.27, as proposed, requires each system to provide
training for program staff and permits training of contractors,
governing board and advisory council members to enhance the development
and implementation of effective P&A services. A system may utilize
individuals who have received or are receiving mental health services
or family members to provide such training. Training should include
advocacy techniques such as negotiation and mediation which, when
appropriately used, avoid costly and time-consuming procedures (H.
Rept. 99-401 at 11; S. Rept. 99-109 at 12).
At a minimum, program staff should be trained to work with family
members of clients served by the program where the individual with
mental illness is a minor, legally competent and chooses to involve the
family member, or legally incompetent and the legal guardian,
conservator or other legal representative is a family member. In
addition, each system should also provide training to ensure that the
program works effectively with individuals with mental illness who are
members of racial and ethnic minorities. This training should enhance
cultural sensitivity and understanding on the part of staff, governing
authority and advisory council members (H. Rept. 102-319 at 8; Rept.
102-114 at 7).
A system may use its Federal allotment to support training,
including related travel expenses, for individuals with mental illness,
family members of such individuals, and other persons who are not
program staff, contractors, or board or council members, to increase
knowledge about protection and advocacy issues, to enhance leadership
capabilities, or to promote Federal-State and inter-State cooperation
on matters related to mental health system improvements. Decisions
concerning the selection of individuals to receive such training shall
be made in accordance with established policies, procedures and
priorities of the system. Expenditures for such training are subject to
the 10 percent limitation cited in section 51.6(e).
Section 51.28-Section 51.30 Reserved
Subpart C--Protection and Advocacy Services
Conduct of Protection and Advocacy Activities
Section 51.31, as proposed, directs each system to establish its
own policies and procedures to govern its advocacy activities. Many
programs have already developed such procedures and policies following
standards issued by the National Association of Protection and Advocacy
Systems (NAPAS).
Program advocacy policies and procedures should encourage staff to
maintain a presence in mental health care facilities. An on-site
presence allows staff to interact with current or potential recipients
of protection and advocacy services on a regular basis and enhances the
ability to communicate with facility personnel providing mental health
care and treatment as well as to obtain information and to review
records. Program policies should also encourage system advocates to
work with family members, social and community system workers and
others who provide care and treatment for potential and present
clients.
Resolving Disputes
Section 51.32, as proposed, clarifies that a system may pursue all
appropriate remedies on behalf of its clients consistent with Federal
and State law and the canons of professional ethics. Negotiation,
mediation, conciliation, and other administrative procedures, should be
developed and employed where such approaches offer the prospect of
prompt and economical resolution of disputes. Disputes between
individuals with mental illness and treatment professionals respecting
a particular course of treatment may be singularly suitable for
resolution through nonadversarial techniques--especially where these
methods facilitate the appropriate involvement of family members (S.
Rept. 102-114 at 6). However, although systems are encouraged to use
nonadversarial methods where feasible, the Act does not restrict client
rights to legal remedies otherwise available under Federal and State
laws (S. Rept. 99-109 at 11).
Section 51.33-Section 51.40 Reserved
Subpart D--Access to Records, Facilities and Individuals Access to
Records
Section 51.41, as proposed, implements section 105(a)(4) of the Act
[42 U.S.C. 10805(a)(4)] which affords a system access to all records of
an individual with mental illness when authorized by that individual or
his or her representative. A system also has the right to records when
it has probable cause to believe that an eligible individual has been
subject to abuse or neglect, and is mentally or physically unable to
provide authorization, and has no legal guardian, conservator or other
legal representative or the individual's guardian is the State.
Further, in accordance with section 105(a)(4)(C)(i) of the Act [42
U.S.C. 10805(a)(4)(C)(i)], the system also has the right to records if
the system has probable cause to believe that the individual's health
or safety is in serious and immediate jeopardy or with respect to whom
a complaint has been received, provided the individual's representative
has been contacted, offered assistance, and failed or refused to act. A
facility must cooperate by promptly furnishing the system the records
or the name and address of an individual's representative or otherwise
comply with section 51.43.
Authority to access records is essential to enable systems to
``effectively carry out their protection and advocacy and investigatory
responsibilities'' (S. Rept. 100-454 at 9); Mississippi Protection &
Advocacy System, Inc. v. Cotten, 929 F.2d 1054 (5th Cir. 1991). A
system must be given access to records based either on a complaint or
based on information obtained ``as a result of monitoring or other
activities (either of which result from a complaint or other
evidence).'' Section 105(a)(4)(B)(iii) of the Act [42 U.S.C.
10805(a)(4)(B)(iii)]. Monitoring or other investigate activity may be
initiated either based on a complaint from an allegedly abused or
neglected individual or from other persons, or based on other evidence
such as observations by system personnel, review of reports, newspaper
accounts, or ``hot-line'' calls. The definition of ``probable cause''
is modeled on the California statute, implementing the Act, California
Welfare & Institutions Code, Div. 4.7, section 4900(g). This prototype,
enacted in January 1992, follows conventional legal principles
measuring probable cause in terms of reasonable judgments made by
system personnel drawing, where appropriate, upon their training and
experience.
Section 51.41(c), as proposed, identifies some of the kinds of
information and records which shall be made available to a system under
this requirement. Such information includes: access to records obtained
in the course of providing intake, assessment, evaluation, care or
treatment services [paragraph (c)(1)]; to investigative reports of
incidents of abuse, neglect or injury occurring at the facility
[paragraph (c)(2)]; to discharge planning records [(c)(3)], as
specifically mandated under section 106(b)(3)(A) of the Act [42 U.S.C.
10806(b)(3)(A)]; and to safety standards and demographic and
statistical information [pargaraph (c)(5)].
In addition, both the Senate and House committee reports discussed
access to records of medical care evaluation and peer review committees
during their consideration of the 1991 amendments, and indicated that
the Act was not intended to preempt State law regarding disclosure of
peer review or medical review records (S. Rept. 102-114 at 5; H. Rept.
102-319 at 6). However, Congress recognizes that systems must have
access to ``supporting documents'' in order to ``carry out their
protection and advocacy and investigatory responsibilities'' (S. Rept.
100-454 at 9).
The proposed descriptions of information and records subject to
access requirements are largely modeled on access agreements negotiated
by various systems or imposed under court order. Provision for
inspection and copying of records at reasonable times and places,
subject to reimbursement of reasonable duplicating costs, [paragraph
(d)], is an essential element of any access requirement.
Access to Facilities and Residents
Section 51.42, as proposed, implements section 105(a) of the Act
[42 U.S.C. 10805(a)(3)] which affords systems access to facilities in
the State rendering care and treatment for individuals with mental
illness so that they can meet their investigatory, monitoring and
advocacy responsiblities. It is modeled on section 4902(b) of the
California statute referenced above. Provision is made for access at
all times necessary to investigate incidents of abuse or neglect when
an incident is reported to the system or when a system determines that
there is probable cause to believe an incident occurred or that there
is imminent danger of serious abuse or neglect.
Access to facilities and residents at reasonable times and
circumstances for other protection and advocacy services, such as
information and training (described in paragraph (b)) accords with the
legislative intent (S. Rept. 100-454 at 11). It largely follows the
California model and provisions in negotiated agreements and in court
orders.
Denial of Access
Section 51.43, as proposed, facilitates the speedy resolution of
disputes regarding access by requiring facilities to provide a written
statement of the reasons for a denial as well as the name and address
of any person whose authorization is allegedly required.
Access to Federal Facilities and Records
Section 51.44, as proposed, implements section 104(c) of the Act
[42 U.S.C. 10804(c)] which requires that systems be accorded the same
rights and authority accorded to other representatives of residents of
Federal facilities pursuant to State and Federal law.
Confidentiality of P&A System Client Records
Section 51.45, as proposed, establishes procedures to ensure the
protection of the system's client records and for access by authorized
Federal officials. The requirements in paragraph (a) are similar to
those in CMHS PAIMI policy guidelines implementing section 106(a) of
the Act [42 U.S.C. 10806(a)] and ADD regulations. Paragraph (b),
modeled on section 4903(d) of the California statute, makes it clear
that confidentiality restrictions do not impede a system from issuing
public reports that do not identify individuals or from reporting
information to cognizant investigative and enforcement agencies.
Disclosing Information Obtained From a Provider of Mental Health
Services
Section 51.46, as proposed, implements sections 106(b) (1) and (2)
of the Act [42 U.S.C. 10806(b) (1) and (2)] which spells out the steps
to be taken to resolve disputes about disclosure of material in records
to which the system has access under the act to the individual who
received the mental health services. The proposed regulation tracks the
statutorily mandated procedures for resolution of such disputes by
another mental health professional to be selected either by the
individual, by the individual's legal guardian, conservator or other
legal representative or by the system acting on behalf of an individual
whose guardian is the State or whose legal representative has not
selected a mental health professional to review the information within
a reasonable period of time after the denial of access. The legislative
objective is ``to restrict informed consent of clients/patients as
little as possible'' (H. Rept. 99-401 at 10).
Impact Analysis
Executive Order 12866
Executive Order 12866 requires that all regulations reflect
consideration of the costs and benefits they may generate, and that
they meet certain standards, such as avoiding unnecessary burden.
Regulations which are ``significant'' because of cost, adverse impacts
on the economy, inconsistency with other federal agency action, effects
on the federal budget, or their raising of novel legal or policy
issues, require special analysis. The Secretary has determined that
this proposal does not meet the Order's significance criteria.
Regulatory Flexibility Act of 1980
The proposed regulations have been reviewed in accordance with the
requirements of the Regulatory Flexibility Act of 1980 [5 U.S.C.
Chapter 6]. The Department has determined that compliance with the
proposed regulations would not have a significant economic impact on a
substantial number of small entities and, therefore, a Regulatory
Flexibility Analysis is not required.
Federal Supremacy
These proposed regulations are not intended to preempt further
regulation in the field by States. However, we are aware of at least
one State that has enacted legislation implementing the PAIMI Act.
Consistent with the established principles of Constitutional law, the
proposed Federal regulations will supersede State law to the extent
that there is a conflict.
Paperwork Reduction Act
The proposed rule contains information collection requirements
which are subject to review and approval by the Office of Management
and Budget (OMB) under the Paperwork Reduction Act of 1980. The form
and manner of information collection specified in Sec. 51.8 (Annual
Reports) have been previously reported to and approved by OMB under OMB
Approval No. 0930-0169. The title, description, and respondent
description of the information collection requirements are presented
below with an estimate of the annual reporting burden. Included in the
estimate is the time for reviewing instructions, searching existing
data sources, gathering and maintaining the data needed, and completing
and reviewing the collection of information.
Title: Protection and Advocacy of Individuals with Mental Illness--
42 CFR 51--NPRM
Description: Recipients of formula grants to provide protection and
advocacy services to individuals with mental illness are required by
law to report their activities and accomplishments annually, including
the number and types of persons served, the types of facilities
covered, and the manner in which the activities were undertaken. The
Advisory Council is required to submit a description of activities and
an assessment of the operations of the protection and advocacy system.
Description of Respondents: State or local governments, Non-profit
institutions.
Estimated Annual Reporting Burden:
----------------------------------------------------------------------------------------------------------------
Annual
Section Annual No. of respondents Annual Average burden burden
frequency per response hours
----------------------------------------------------------------------------------------------------------------
51.8(2)&(4)...................... 56--Program Performance Report... 1 35 hours........ 1,960
51.8(3).......................... 56--Advisory Council Report...... 1 10 hours........ 560
Total........................ ................................. ........... ................ 2,520*
----------------------------------------------------------------------------------------------------------------
*Burden hours are approved under OMB Approval No. 0930-0169
We have submitted a copy of this proposed rule to OMB for its
review of these information collections. Individuals or organizations
wishing to submit comments on the information requirements, estimated
burden or any other aspect of this collection of information should
direct such comments to the agency official designated for this purpose
whose name appears in this preamble, and to the Office of Information
and Regulatory Affairs, OMB, New Executive Office Building (Room
10235), 725 17th Street N.W., Washington, DC 20503 ATTN: SAMHSA Desk
Officer.
Smoke Free Workplace
Public Law 103-229 enacted on March 31, 1994 prohibits smoking in
certain facilities in which minors will be present. The Department of
Health and Human Services is now preparing to implement the provisions
of the law. Until those implementation plans are in place, PHS
continues to strongly encourage all grant recipients to provide a
smoke-free workplace and promote the non-use of all tobacco products.
List of Subjects in 42 CFR Part 51
Administrative practice and procedure, Grant programs--health
programs, Grant programs--social programs, Health records, Mental
health programs, Privacy, Reporting and recordkeeping requirements.
Catalogue of Federal Domestic Assistance
Catalogue of Federal Domestic Assistance (CFDA) number programs
affected by this proposed rule are: 93.138 Protection and Advocacy for
Individuals with Mental Illness.
Dated: September 16, 1994.
Philip R. Lee,
Assistant Secretary for Health.
Approved: December 5, 1994.
Donna E. Shalala,
Secretary.
Accordingly, it is proposed to add part 51 to title 42 of the Code
of Federal Regulations to read as set forth below.
PART 51--REQUIREMENTS APPLICABLE TO THE PROTECTION AND ADVOCACY FOR
INDIVIDUALS WITH MENTAL ILLNESS PROGRAM
Sec.
51.1 Applicability.
51.2 Definitions.
Subpart A--Basic Requirements
51.3 Formula for determining allotments.
51.4 Grants administration requirements.
51.5 Eligibility for allotment.
51.6 Use of allotments.
51.7 Eligibility for protection and advocacy services.
51.8 Annual reports.
51.9 Financial status reports.
51.10 Remedial actions.
51.11-51.20 [Reserved]
Subpart B--Program Administration and Priorities
51.21 Contracts for program operations.
51.22 Governing authority.
51.23 Advisory council.
51.24 Program priorities.
51.25 Grievance procedure.
51.26 Conflicts of interest.
51.27 Training.
51.28-51.30 [Reserved]
Subpart C--Protection and Advocacy Services
51.31 Conduct of protection and advocacy activities.
51.32 Resolving disputes.
51.33-51.40 [Reserved]
Subpart D--Access to Records, Facilities and Individuals
51.41 Access to records.
51.42 Access to facilities and residents.
51.43 Denial of access.
51.44 Access to Federal facilities and records.
51.45 Confidentiality of protection and advocacy system client
records.
51.46 Disclosing information obtained from a provider of mental
health services.
Authority: Protection and Advocacy for Individuals with Mental
Illness Act of 1986, as amended 42 U.S.C. Sec. 10801 et seq.
Sec. 51.1 Applicability.
The provisions of this part apply to recipients of Federal
assistance under the Protection and Advocacy for Individuals with
Mental Illness Act of 1986, as amended [42 U.S.C. 10801 et seq.].
Sec. 51.2 Definitions.
In addition to the definitions in section 102 of the Act, as
amended [42 U.S.C. 10802] the following definitions apply:
Act means the Protection and Advocacy for Individuals with Mental
Illness Act of 1986, as amended [42 U.S.C. 10801 et seq.].
ADD means the Administration on Developmental Disabilities within
the Administration for Children and Families.
Care or Treatment means services provided to prevent, identify,
reduce or stabilize mental illness or emotional impairment such as
mental health screening, evaluation, counseling, biomedical, behavioral
and psycho-therapies, supportive or other adjunctive therapies,
medication supervision, special education and rehabilitation.
Center or CMHS means the Center for Mental Health Services in the
Substance Abuse and Mental Health Services Administration.
Department or HHS means the U.S. Department of Health and Human
Services.
Director means the Director of the Center for Mental Health
Services, Substance Abuse and Mental Health Services Administration, or
his or her designee.
Fiscal Year means the Federal fiscal year (October 1--September 30)
unless other specified.
Governor means the chief executive officer of the State or
Territory, or his or her designee, who has been formally designated to
act for the Governor in carrying out the requirements of the Act and
these regulations.
Legal guardian, conservator, and legal representative all mean
individuals appointed and regularly reviewed by a State court or agency
empowered under State law to appoint and review such officers. It does
not include persons acting only as a representative payee, persons
acting only to handle financial payments, attorneys or persons acting
on behalf of an individual with mental illness only in individual legal
matters, the State, or officials responsible for the provision of
health or mental health services to an individual with mental illness.
Private Entity means a nonprofit or for-profit corporation,
partnership or other non-governmental organization.
Program means a program for protection and advocacy for individuals
with mental illness that meets the requirements of the Act.
Public Entity means an organizational unit of a State or local
government or a quasi-governmental entity with one or more governmental
powers.
System means the organization or agency designated in a State to
administer and operate advocacy programs to protect and advocate the
rights of persons with developmental disabilities under Part C of the
Developmental Disabilities Assistance and Bill of Rights Act [42 U.S.C.
6041, 6042] and thereby eligible to receive allotments from the
Secretary under the Act to administer a program.
Subpart A--Basic Requirements
Sec. 51.3 Formula for determining allotments.
The Secretary shall make allotments to eligible systems from
amounts apportioned each year under the Act on the basis of a formula
prescribed by the Secretary in accordance with the requirements of
sections 112 and 113 of the Act [42 U.S.C. 10822 and 10823].
Sec. 51.4 Grants administration requirements.
The following parts of title 45 CFR apply to grants funded under
this part.
45 CFR part 16--Procedures of the Departmental Grant Appeal
Board.
45 CFR part 74--Administration of Grants.
45 CFR part 75--Informal Grant Appeals Procedures.
45 CFR part 76--Government-wide Debarment and Suspension
(NonProcurement) and Government-wide Requirements for Drug-Free
Workplace.
45 CFR part 80--Nondiscrimination under Programs Receiving
Federal Assistance through the Department of Health and Human
Services--Effectuation of Title VI of the Civil Rights Act of 1964.
45 CFR part 81--Practice and Procedure for Hearings under part
80 of this title.
45 CFR part 84--Nondiscrimination on the Basis of Handicap in
Programs and Activities Receiving or Benefiting from Federal
Financial Assistance.
45 CFR part 86--Nondiscrimination on the Basis of Sex in
Education Programs and Activities Receiving Federal Financial
Assistance.
45 CFR part 91--Nondiscrimination on the Basis of Age in
Education Programs and Activities Receiving Federal Financial
Assistance from HHS.
45 CFR part 92--Uniform Administrative Requirements for Grants
and Cooperative Agreements to State and Local Governments.
45 CFR part 93--New Restrictions on Lobbying.
45 CFR part 1386, Subpart A.
Sec. 51.5 Eligibility for allotment.
(a) Federal financial assistance for protection and advocacy
activities for individuals with mental illness will be given only to a
system that has been established under part C of the Development
Disabilities Assistance and Bill of Rights [42 U.S.C. 6041, 6042] and
designated in accordance with 45 CFR part 1386, subpart B.
(b) The system must meet the requirements of sections 105 and 111
of the Act [42 U.S.C. 10805 and 10821] and that system must be
operational.
(c) Written assurances of compliance with sections 105 and 111 of
the Act [42 U.S.C. 10805 and 10821] and other requirements of the Act
and the regulations shall be submitted by the system in the format
designated by the Director. These assurances will remain in effect for
the period specified in the application for funds unless changes occur
within the State which will affect the functioning of the system, in
which case an amendment is required 30 days prior to the effective date
of the change.
(d) The Governor's written assurance that the allotments made
available under the Act will be used to supplement and not to supplant
the level of non-Federal funds available in the State to protect and
advocate the rights of individuals with mental illness shall be
submitted by the system. The Governor may provide this assurance along
with the assurances provided at ADD under 45 CFR part 1386.
Sec. 51.6 Use of allotments.
(a) Allotments must be used to supplement and not to supplant the
level of non-Federal funds available in the State to protect and
advocate the rights of individuals with mental illness.
(b) Allotments may not be used to support lobbying activities to
influence proposed or pending Federal legislation or appropriations.
This restriction does not affect the right of any system, organization
or individual to petition Congress or any other government body or
official using resources. A system may monitor, evaluate and comment on
the development and implementation of Federal, State and local laws,
regulations, plans, budgets, levies, projects, policies and hearings
affecting individuals with mental illness as a part of federally-funded
advocacy activities.
(c) Allotments may not be used to produce or distribute written,
audio or visual materials or publicity intended or designed to support
or defeat any candidate for public office.
(d) If an eligible system is a public entity, the system shall not
be required by the State to obligate more than five percent of its
annual allotment for administrative expenses such as costs of internal
or external evaluations, monitoring or auditing. This restriction does
not include:
(1) Salaries, wages and benefits of program staff;
(2) Costs associated with attending governing board or advisory
council meetings; or
(3) Expenses associated with the provision of training or technical
assistance for staff, contractors, members of the governing board or
advisory council.
(e) No more than ten percent of each annual allotment may be used
for providing technical assistance and training, including travel
expenses, for staff, contractors, or members of the governing board or
advisory council.
Sec. 51.7 Eligibility for protection and advocacy services.
In accordance with section 105(a)(1)(C) of the Act [42 U.S.C.
10805(a)(1)(C)] and the priorities established by the system's
governing authority together with the mental health advisory council
pursuant to section 105(c)(2)(B) of the Act [42 U.S.C. 10805(c)(2)(B)],
allotments may be used:
(a) To provide protection and advocacy services for:
(1) Individuals with mental illness as defined in 42 U.S.C.
10802(4) and 10805(a)(C), including, persons who report matters which
occurred while they were individuals with mental illness;
(2) Individuals with mental illness in Federal facilities rendering
care or treatment who request representation by the eligible system.
Representation may be requested by an individual with mental illness,
or by a legal guardian, conservator or legal representative.
(b) To provide representation of clients in civil commitment
proceedings if the system is acting on behalf of an eligible individual
to obtain judicial review of his/her commitment in order to appeal or
otherwise challenge procedures which have subjected the individual to
abuse or neglect or otherwise violated his/her rights. This restriction
does not prevent a system from representing clients in commitment or
recommitment proceedings using other resources so long as this
representation does not conflict with responsibilities under the Act.
Sec. 51.8 Annual reports.
By January 1 of each year, a report shall be submitted, pursuant to
section 105(a)(7) of the Act [42 U.S.C. 10805(a)(7)], to the Secretary
which:
(a) Is in the format designated by the Secretary;
(b) Describes the activities, accomplishments, and expenditures of
the system on behalf of individuals with mental illness during the
previous fiscal year;
(c) Includes a section prepared by the mental health advisory
council describing its activities during the previous fiscal year and
its assessment of the program's progress in addressing the priorities,
goals and objectives established for the previous fiscal year; and
(d) Includes a statement of the program priorities established and
shall also address any comments received through public comment.
Sec. 51.9 Financial status reports.
A grantee shall submit a Financial Status Report in accordance with
45 CFR 74.73.
Sec. 51.10 Remedial actions.
Failure to submit an annual report in the designated format on time
or to satisfy any other requirement of the Act, the regulations, or
other requirements may be considered a breach of the terms and
conditions of the grant award and may require remedial action such as
the suspension or termination of an active grant, withholding of
payments or converting to a reimbursement method of payment.
Secs. 51.11-51.20 [Reserved]
Subpart B--Program Administration and Priorities
Sec. 51.21 Contracts for program operations.
(a) An eligible system should work cooperatively with existing
advocacy agencies and groups and, where appropriate, should consider
entering into contracts for protection and advocacy services with
organizations already working on behalf of individuals with mental
illness. Special consideration should be given to contracting for the
services of groups run by individuals who have received or are
receiving mental health services or by family members of such
individuals.
(b) An eligible system may contract for the operation of all or
part of its program with another pubic or private nonprofit
organization provided that:
(1) Any organization that will operate the full program meets the
requirements of sections 104(a)(1), 105 and 111 of the Act [42 U.S.C.
10804(a)(1), 10805 and 10821] and has the capacity to perform
protection and advocacy activities throughout the State;
(2) The eligible system institutes oversight and monitoring
procedures which ensure that all applicable terms, conditions and
obligations of the Federal grant are met;
(3) The eligible system and the contractor organization enter into
a written agreement that includes at least the following:
(i) A description of the protection and advocacy services to be
provided;
(ii) The type of personnel, their qualifications and training;
(iii) The methods to be used;
(iv) A timetable for performance;
(v) A budget;
(vi) Assurances that the contractor will meet all applicable terms
and conditions of the grant;
(vii) Assurances that the contractor has adequate management and
fiscal systems in place, including insurance coverage, if appropriate;
(viii) Assurances that the contractor's staff is trained to provide
advocacy services to individuals with mental illness; and
(ix) Assurances that the contractor staff is trained to work with
family members of clients served by the system where the clients are:
(A) Minors;
(B) Legally competent and choose to involve the family member; or,
(C) Legally incompetent and the legal guardians, conservators or
other legal representatives are family members.
Sec. 51.22 Governing authority.
(a) Each system shall have a governing authority responsible for
planning, design, implementation and functioning.
(b) If the system is organized with a multi-member governing board:
(1) Each system shall establish policies and procedures for the
selection of its governing board members, and their terms;
(2) The board shall be composed of members who broadly represent or
are knowledgeable about the needs of the clients served by the system;
(3) If the governing authority is organized as a private nonprofit
entity, the chairperson of the mental health advisory council shall be
a member of the governing board.
(c) Continuing efforts shall be made to include members of racial
and ethnic minority groups as board members.
(d) A member of the advisory council may also serve on the
governing board.
Sec. 51.23 Advisory council.
(a) Each system shall establish an advisory council to advise on
program policies and priorities.
(b) Members of the council shall include attorneys, mental health
professionals, individuals from the public who are knowledgeable about
mental illness, a provider of mental health services, individuals who
have received or are receiving mental health services and family
members of such individuals. Continuing efforts shall be made to
include members of racial and ethnic minority groups on the advisory
council.
(1) At least 60 percent of the membership (including the chair) of
the advisory council shall be comprised of individuals who have
received or are receiving mental health services or who are family
members of such individuals;
(2) The council shall be chaired by an individual who has received
or is receiving mental health services or who is a family member of
such an individual;
(c) Each system shall provide its advisory council with reports,
materials and fiscal data to enable review of existing program policies
and priorities. Such submissions shall be made at least annually and
shall report expenditures for the past two fiscal years, as well as
projected expenses for the next fiscal year, identified by budget
categories (e.g., salaries and wages, contracts for services,
administrative expenses).
(d) Reimbursement of expenses. (1) Allotments may be used to pay
for all or a part of the expenses incurred by members of the advisory
council in order to participate in its activities. Expenses may include
transportation costs, parking, meals, hotel costs, per diem expenses,
stipends or subsistence allowances, and the cost of day care (or its
equivalent for travel and subsistence expenses) for their dependents
with mental illness or developmental disabilities.
(2) Each system shall establish its own policies and procedures for
reimbursement of expenses of council members, taking into account the
needs of individual council members, available resources, and
applicable restrictions on use of grant funds, including the
restrictions in sections 51.4, 51.6(e) and 51.27(b).
Sec. 51.24 Program priorities.
(a) Program priorities and policies shall be established annually
by the governing authority, jointly with the advisory council.
Priorities shall specify short-term program goals and objectives, with
measurable outcomes, which implement established priorities. In
developing priorities, consideration shall be given to, at a minimum,
case selection criteria, the availability and monetary resources, and
special problems and cultural barriers faced by individuals with mental
illness who are multiply handicapped or who are members of racial or
ethnic minorities in obtaining protection of their rights.
(b) Members of the public shall be given an opportunity, on an
annual basis, to comment on the priorities established by, and the
activities of, the system. Procedures for public comment must provide
for notice in a format accessible to individuals with mental illness,
including such individuals who are in residential facilities, to family
members and representatives of such individuals and to other
individuals with disabilities. Procedures for public comment must
provide for receipt of comments in writing or in person.
Sec. 51.25 Grievance procedure.
(a) The system shall establish grievance procedures to address
complaints from:
(1) clients or prospective clients of the system to assure that
individuals with mental illness have full access to the services of the
program; and
(2) individuals who have received or are receiving mental health
services in the State, family members of such individuals, or
representatives of such individuals or family members to assure that
the eligible system is operating in compliance with the Act.
(b) At a minimum, the grievance procedures shall provide for:
(1) an appeal to the governing authority for any final staff review
and/or determination;
(2) reports, at least annually, to the governing authority and the
mental health advisory council describing the complaints received, the
grievances processed and the resolution;
(3) identification individuals responsible for review;
(4) a timetable to ensure prompt resolution;
(5) a written response to the grievant; and
(6) protection of client confidentiality.
Sec. 51.26 Conflicts of interest.
The system should develop appropriate policies and procedures to
avoid actual or apparent conflict of interest involving clients,
employees, contractors and subcontractors, and members of the governing
authority and advisory council, particularly with respect to matters
affecting client services, particular contracts and subcontracts,
grievance review procedures, reimbursements and expenses, and the
employment or termination of staff.
Sec. 51.27 Training.
(a) A system shall provide training for program staff, and may also
provide training for contractors, governing board and advisory council
members to enhance the development and implementation of effective
protection and advocacy services for individuals with mental illness,
including at a minimum:
(1) Training of program staff to work with family members of
clients served by the program where the individual with mental illness
is:
(i) A minor,
(ii) Legally competent and chooses to involve the family member; or
(iii) Legally incompetent and the legal guardian, conservator or
other legal representative is a family member.
This training may be provided by individuals who have received or are
receiving mental health services and family members of such
individuals.
(2) Training to enhance sensitivity to and understanding of
individuals with mental illness who are members of racial or ethnic
minorities and to develop strategies for outreach to those populations.
(b) A system may support or provide training, including related
travel expenses, for individuals with mental illness, family members of
such individuals, and other persons who are not program staff,
contractors, board or council members, to increase knowledge about
protection and advocacy issues, to enhance leadership capabilities, or
to promote Federal-State and inter-State cooperation on matters related
to mental health system improvement. Decisions concerning the selection
of individuals to receive such training shall be made in accordance
with established policies, procedures and priorities of the system.
Sec. 51.28-51.30 [Reserved]
Subpart C--Protection and Advocacy Services
Sec. 51.31 Conduct of protection and advocacy activities.
(a) A system shall establish policies and procedures to guide and
coordinate advocacy activities.
(b) Wherever possible, the program should establish an ongoing
presence in residential mental health care or treatment facilities, and
relevant hospital units.
(c) Program activities should be carried out in a manner which
allows program staff to:
(1) Interact regularly with those individuals who are current or
potential recipients of protection and advocacy services;
(2) Interact regularly with staff providing care or treatment;
(3) Obtain information and review records; and
(4) Communicate with family members, social and community service
workers and others involved in providing care or treatment.
Sec. 51.32 Resolving disputes.
(a) Consistent with State and Federal law and the canons of
professional ethics, a system may use any appropriate technique and
pursue administrative, legal or other appropriate remedies to protect
and advocate on behalf of individuals with mental illness. However,
each system is encouraged to develop and employ techniques such as
those involving negotiation, conciliation and mediation to resolve
disputes early in the protection and advocacy process.
(b) Disputes, including disputes between an individual with mental
illness and treatment professionals as to a particular course of
recommended treatment, should be resolved whenever possible through
nonadversarial processes involving negotiation, mediation and
conciliation. Consistent with State and Federal laws and canons of
professional responsibility, family members should be involved in this
process as appropriate where the individual with mental illness is:
(1) A minor,
(2) Legally competent and chooses to involve the family member, or
(3) Legally incompetent and the legal guardian, conservator or
other legal representative is a family member.
(c) A system must exhaust in a timely manner all administrative
remedies, where appropriate, prior to initiating legal action. However,
if in pursuing administrative remedies, the system determines that any
matter with respect to an individual with mental illness will not be
resolved within a reasonable time, the system may pursue alternative
remedies, including initiating legal action.
(d) Paragraph (c) of this section does not apply to any legal
action instituted to prevent or eliminate imminent serious harm to an
individual with mental illness.
(e) The Act imposes no additional burden respecting exhaustion of
remedies.
Sec. 51.33-51.40 [Reserved]
Subpart D--Access to Records, Facilities and Individuals
Sec. 51.41 Access to records.
(a) A system shall have access to the records of any of the
following individuals with mental illness:
(1) An individual who is a client of the system if authorized by
that individual or the legal guardian, conservator or other legal
representative.
(2) An individual, including an individual who has died or whose
whereabouts is unknown, to whom all of the following conditions apply:
(i) The individual, due to his or her mental or physical condition,
is unable to authorize the system to have access;
(ii) The individual does not have a legal guardian, conservator or
other legal representative, or the individual's guardian is the State;
and
(iii) A complaint has been received by the system or, as a result
of monitoring or other activities, the system has probable cause to
believe that the individual has been subject to abuse or neglect.
(3)An individual who has a legal guardian, conservator, or other
legal representative, with respect to whom a complaint has been
received by the system or with respect to whom the system has
determined that there is probable cause to believe that the health or
safety of the individual is in serious and immediate jeopardy, whenever
all of the following conditions exist:
(i) The representative has been contacted by the system upon
receipt of the representative's name and address;
(ii) The system has offered assistance to the representative to
resolve the situation; and
(iii) The representative has failed or refused to act on behalf of
the individual.
(b) ``Probable Cause'' to believe that an individual has been or is
in danger of being subject to abuse and neglect exists when the system
determines that a reasonable person in a like position, drawing when
appropriate upon his or her training and experience, would suspect
abuse or neglect.
(c) Information and records which shall be available to the system
under the Act shall include, but not be limited to:
(1) Information and records obtained in the course of providing
intake, assessment, evaluation and other services, including medical
records, financial records, and reports prepared or received by a
member of the staff of a facility or program rendering care or
treatment.
(2) Reports prepared by an agency charged with investigating
reports of abuse, neglect and injury occurring at a facility/hospital
rendering care or treatment, or by or for the facility/hospital itself,
that describe any or all of the following:
(i) Abuse, neglect, and injury occurring at the facility;
(ii) The steps taken to investigate the incidents; or,
(iii) Reports and records, including personnel records, prepared or
maintained by the facility in connection with such reports of
incidents.
(3) Discharge planning records.
(4) Reports prepared by individuals and entities performing
certification or licensure reviews, or by professional accreditation
organizations, as well as related assessments prepared for the facility
by its staff, contractors or related entities, except that nothing in
this section is intended to preempt State law protecting records
produced by medical care evaluation or peer review committees.
(5) Professional, performance, building or other safety standards,
demographic and statistical information relating to the facility.
(d) A system shall be permitted to inspect and copy records,
subject to a reasonable charge to offset duplicating costs.
Sec. 51.42 Access to facilities and residents.
(a) A system shall have reasonable access to public and private
facilities and programs in the State which render care or treatment for
individuals with mental illness and reasonable access to residents/
patients at all times necessary to investigate an incident of abuse or
neglect. Such access shall be afforded upon request by the system when:
(1) An incident is reported to the system;
(2) The system determines there is probable cause to believe that
an incident occurred; or
(3) The system determines that there is or may be imminent danger
of serious abuse or neglect of an individual with mental illness.
This authority shall include reasonable access and authority to examine
all relevant records and interview any facility/hospital service
recipient, employee, or other person who might have knowledge of the
alleged abuse or neglect.
(b) In addition to access as prescribed in paragraph (a) of this
section, a system shall have access to facilities and programs and
their residents/patients at reasonable times, which at a minimum shall
include normal working hours and visiting hours, for the purpose of:
(1) Providing information and training on, and referral to,
programs addressing the needs of individuals with mental illness,
including information and training about individual rights and the
protection and advocacy services available from the system;
(2) Monitoring compliance with respect to the rights and safety of
residents/patients, and
(3) Inspecting, viewing and photographing all areas of the
facility/hospital which are used by residents/patients or are
accessible to residents/patients.
Such activities shall be conducted so as to minimize interference with
facility/hospital programs, respect residents/patient's, privacy
interests, and honor a resident's/patient's request to terminate an
interview.
(c) Access shall be extended to all authorized agents of a system,
including advocates, appropriately supervised trainees, health/mental
health care providers, legal and accounting personnel, and program
contractors.
(d) Access to residents/patients shall include the opportunity to
meet and communicate with an individual regularly, both formally and
informally, by telephone, mail and in person.
Sec. 51.43 Denial of access.
If a facility proposes to deny access to facilities/hospitals,
residents/patients or records, it shall promptly provide the system
with a written statement of reasons, including, in the case of a denial
for alleged lack of authorization, the name and address of the legal
guardian, conservator, or other legal representative of an individual
with mental illness.
Sec. 51.44 Access to federal facilities and records.
A system providing representation to individuals with mental
illness in Federal facilities shall be accorded all the rights and
authority accorded other representatives of residents of such
facilities pursuant to State and Federal laws.
Sec. 51.45 Confidentiality of protection and advocacy system client
records.
(a) Client records are the property of the system which must
protect records from loss, damage, tampering or use by unauthorized
individuals. The system must:
(1) To the same extent as is required by a provider of mental
health services, keep confidential all information contained in client
records, including information contained in an automated electronic
data system, except as provided elsewhere in this section. This
requirement does not restrict access by the Department or other
authorized Federal officials to client records or other records of the
system for audit purposes and for monitoring system compliance with
applicable Federal law and regulations. Subject to the restrictions and
procedures set out in this section, implementing section 106 (a) and
(b) of the Act [42 U.S.C. 10806 (a) and (b)], this regulation does not
limit access by a legal guardian, conservator, or other legal
representative of an individual with mental illness, unless prohibited
by State or Federal law, court order or the attorney-client privilege.
(2) Have written policies governing access to, duplication and
release of information from client records; and
(3) Obtain written consent from the client, if competent, or from
his or her legal representative before releasing information to
individuals not otherwise authorized to receive it.
(b) Nothing in this subpart shall prevent the system from doing any
of the following:
(1) Issuing a public report of the results of an investigation
which maintains the confidentiality of individual service recipients;
or,
(2) Reporting the results of an investigation to responsible
investigative or enforcement agencies should an investigation reveal
information concerning the facility/hospital, its staff, or employees
warranting possible sanctions or corrective action. This information
may be reported to agencies responsible for facility licensing or
accreditation, employee discipline, employee licensing or
certification, or criminal prosecution.
Sec. 51.46 Disclosing information obtained from a provider of mental
health services.
(a) Except as provided in paragraph (b) of this section, if a
system has access to records pursuant to section 105(a)(4) of the Act
[42 U.S.C. 10805(a)(4)] which under Federal or State law are required
to be maintained in a confidential manner by a provider of mental
health services, it may not disclose information from such records to
the individual who is the subject of the information if the mental
health professional responsible for supervising the provision of mental
health services to that individual has given the system a written
determination that disclosure of such information to the individual
would be detrimental to the individual's health. The provider shall be
responsible for giving any such written determination to the system at
the same time as access to the records containing the information is
denied.
(b) If disclosure of information has been denied under paragraph
(a) of this section to:
(1) An individual;
(2) The legal guardian, conservator, or other legal representative
of the individual; or
(3) An eligible system, acting on behalf of an individual:
(i) Whose legal guardian is the State; or
(ii) Whose legal guardian, conservator, or other legal
representative has not, within a reasonable time after the denial of
access to information under paragraph (a) of this section, selected a
mental health professional to review the information,
then such individuals or the system may select another mental health
professional to review the information and to determine if disclosure
of the information would be detrimental to the individual's health. If
such mental health professional determines, based on professional
judgment, that disclosure of the information would not be detrimental
to the health of the individual, the system may disclose such
information to the individual.
(c) This restriction does not affect the system's right to obtain
access to the records.
[FR Doc. 94-30411 Filed 12-13-94; 8:45 am]
BILLING CODE 4160-20-M
