[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:
    <bullet> 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;
    <bullet> the accuracy of the Agency's estimate of the burden of the 
proposed collection of information;
    <bullet> ways to enhance the quality, utility, and clarity of the 
information to be collected; and
    <bullet> ways to minimize the burden of the collection of 
information on respondents, including through the use of automated 
collection techniques or other forms of information technology.
    Comments on the Paperwork requirement of this regulation should be 
sent to: Daniel J. Chenok, Office of Information and Regulatory 
Affairs, Office of Management and Budget, New Executive Office 
Building, Room 10236, Washington, DC 20503. Written comments should be 
received within 60 days of this notice.

List of Subjects in 42 CFR Part 51

    Administrative practice and procedure, Grant programs--health 
programs. Grant programs--social programs, Health records, Mental 
health programs, Privacy, Reporting and recordkeeping requirements.

    Dated: October 2, 1997.
Donna E. Shalala,
Secretary.

    Accordingly, part 51 is added to title 42 of the Code of Federal 
Regulations to read as follows:

PART 51--REQUIREMENTS APPLICABLE TO THE PROTECTION AND ADVOCACY FOR 
INDIVIDUALS WITH MENTAL ILLNESS PROGRAM

Sec.
51.1 Scope.
51.2  Definitions.

Subpart A--Basic Requirements

51.3  Formula for determining allotments.
51.4  Grants administration requirements.
51.5  Eligibility for allotment.
51.6  Use of allotments.
51.7  Eligibility for protection and advocacy services.
51.8  Annual reports.
51.9  [Reserved]
51.10  Remedial actions.
51.11-51.20  [Reserved]

Subpart B--Program Administration and Priorities

51.21  Contracts for program operations.
51.22  Governing authority.
51.23  Advisory council.
51.24  Program priorities.
51.25  Grievance procedure.
51.26  Conflicts of interest.
51.27  Training.
51.28-51.30  [Reserved]

[[Page 53565]]

Subpart C--Protection and Advocacy Services

51.31  Conduct of protection and advocacy activities.
51.32  Resolving disputes.
51.33-51.40  [Reserved]

Subpart D--Access to Records, Facilities and Individuals

51.41  Access to records.
51.42  Access to facilities and residents.
51.43  Denial or delay of access.
51.44  [Reserved]
51.45  Confidentiality of protection and advocacy system records.
51.46  Disclosing information obtained from a provider of mental 
health services.

    Authority: 42 U.S.C. 10801, et seq.


Sec. 51.1  Scope.

    The provisions of this part apply to recipients of Federal 
assistance under the Protection and Advocacy for Mentally Ill 
Individuals Act of 1986, as amended.


Sec. 51.2  Definitions.

    In addition to the definitions in section 102 of the Act, as 
amended, the following definitions apply:
    Abuse means any act or failure to act by an employee of a facility 
rendering care or treatment which was performed, or which was failed to 
be performed, knowingly, recklessly, or intentionally, and which 
caused, or may have caused, injury or death to an individual with 
mental illness, and includes but is not limited to acts such as: rape 
or sexual assault; striking; the use of excessive force when placing an 
individual with mental illness in bodily restrains; the use of bodily 
or chemical restraints which is not in compliance with Federal and 
State laws and regulations; verbal, nonverbal, mental and emotional 
harassment; and any other practice which is likely to cause immediate 
physical or psychological harm or result in long-term harm if such 
practices continue.
    Act means the Protection and Advocacy for Mentally Ill Individuals 
Act of 1986, as amended, also referred to as Protection and Advocacy 
for Individuals with Mental Illness Act.
    ADD means the Administration on Developmental Disabilities within 
the Administration for Children and Families, Department of Health and 
Human Services.
    Care or Treatment means services provided to prevent, identify, 
reduce or stabilize mental illness or emotional impairment such as 
mental health screening, evaluation, counseling, biomedical, behavioral 
and psychotherapies, supportive or other adjunctive therapies, 
medication supervision, special education and rehabilitation, even if 
only ``as needed'' or under a contractual arrangement.
    Center or CMHS means the Center for Mental Health Services, a 
component of the Substance Abuse and Mental Health Services 
Administration.
    Complaint includes, but is not limited to any report or 
communication, whether formal or informal, written or oral, received by 
the P&A system, including media accounts, newspaper articles, telephone 
calls (including anonymous calls) from any source alleging abuse or 
neglect of an individual with mental illness.
    Department or HHS means the U.S. Department of Health and Human 
Services.
    Designated Official is the State official or public or private 
entity empowered by the Governor or State legislature to be accountable 
for the proper use of funds by the P&A system.
    Director means the Director of the Center for Mental Health 
Services, Substance Abuse and Mental Health Services Administration, or 
his or her designee.
    Facility includes any public or private residential setting that 
provides overnight care accompanied by treatment services. Facilities 
include, but are not limited to the following: general and psychiatric 
hospitals, nursing homes, board and care homes, community housing, 
juvenile detention facilities, homeless shelters, and jails and 
prisons, including all general areas as well as special mental health 
or forensic units.
    Fiscal Year or FY means the Federal fiscal year (October 1-
September 30) unless otherwise specified.
    Full Investigation is based upon a complaint or a determination of 
probable cause and means the access to facilities, clients and records 
authorized under this part that is necessary for a P&A system to make a 
determination about whether an allegation of abuse or neglect is taking 
place or has taken place. Full investigations may be conducted 
independently or in cooperation with other agencies authorized to 
conduct similar investigations.
    Governor means the chief executive officer of the State, Territory 
or the District of Columbia, or his or her designee, who has been 
formally designated to act for the Governor in carrying out the 
requirements of the Act and this part.
    Individual with Mental Illness means an individual who has a 
significant mental illness or emotional impairment, as determined by a 
mental health professional qualified under the laws and regulations of 
the State and
    (1) Who is an inpatient or resident in a facility rendering care or 
treatment, even if the whereabouts of such impatient or resident is 
unknown;
    (2) Who is in the process of being admitted to a facility rendering 
care or treatment, including persons being transported to such a 
facility, or
    (3) Who is involuntarily confined in a detention facility, jail or 
prison.
    Legal Guardian, Conservator, and Legal Representative all mean an 
individual whose appointment is made and regularly reviewed by a State 
court or agency empowered under State law to appoint and review such 
officers, and having authority to consent to health/mental health care 
or treatment of an individual with mental illness. It does not include 
persons acting only as a representative payee, persons acting only to 
handle financial payments, attorneys or persons acting on behalf of an 
individual with mental illness only in individual legal matters, or 
officials responsible for the provision of health or mental health 
services to an individual with mental illness, or their designees.
    Neglect means a negligent act or omission by an individual 
responsible for providing services in a facility rendering care or 
treatment which caused or may have caused injury or death to an 
individual with mental illness or which placed an individual with 
mental illness at risk of injury or death, and includes, but is not 
limited to, acts or omissions such as failure to: establish or carry 
out an appropriate individual program or treatment plan (including a 
discharge plan); provide adequate nutrition, clothing, or health care; 
and the failure to provide a safe environment which also includes 
failure to maintain adequate numbers of appropriately trained staff.
    Private Entity means a nonprofit or for-profit corporation, 
partnership or other nongovernmental organization.
    Probable cause means reasonable grounds for belief that an 
individual with mental illness has been, or may be at significant risk 
of being subject to abuse or neglect. The individual making such 
determination may base the decision on reasonable inferences drawn from 
his or her experience or training regarding similar incidents, 
conditions or problems that are usually associated with abuse or 
neglect.
    Program means activities carried out by the P&A system and 
operating as part of a P&A system to meet the requirements of the Act.
    Public Entity means an organizational unit of a State or local 
government or a quasi-governmental entity with one or more governmental 
powers.

[[Page 53566]]

    System means the organization or agency designated in a State to 
administer and operate a protection and advocacy program under Part C 
of the Developmental Disabilities Assistance and Bill of Rights Act (42 
U.S.C. 6041, 6042) and thereby eligible to administer a program for 
individuals with mental illness.

Subpart A--Basic Requirements


Sec. 51.3  Formula for determining allotments.

    The Secretary shall make allotments to eligible Systems from 
amounts apportioned each year under the Act on the basis of a formula 
prescribed by the Secretary in accordance with the requirements of 
sections 112 and 113 of the Act (42 U.S.C. 10822 and 10823).


Sec. 51.4  Grants administration requirements.

    The following parts of titles 42 and 45 CFR apply to grants funded 
under this part.

42 CFR Part 50, Subpart D.
45 CFR Part 16--Procedures of the Departmental Grant Appeal Board.
45 CFR Part 74--Administration of Grants.
45 CFR Part 75--Informal Grant Appeals Procedures.
45 CFR Part 76--Government-wide Debarment and Suspension 
(Nonprocurement) and Government-wide Requirements for Drug-Free 
Workplace.
45 CFR Part 80--Nondiscrimination under Programs Receiving Federal 
Assistance through the Department of Health and Human Services--
Effectuation of Title VI of the Civil Rights Act of 1964.
45 CFR Part 81--Practice and Procedure for Hearings under Part 80 of 
This Title.
45 CFR Part 84--Nondiscrimination on the Basis of Handicap in 
Programs and Activities Receiving or Benefiting from Federal 
Financial Assistance.
45 CFR Part 86--Nondiscrimination on the Basis of Sex in Education 
Programs and Activities Receiving Federal Financial Assistance.
45 CFR Part 91--Nondiscrimination on the Basis of Age in Education 
Programs and Activities Receiving Federal Financial Assistance from 
HHS.
45 CFR Part 92--Uniform Administrative Requirements for Grants and 
Cooperative Agreements to State and Local Governments.
45 CFR Part 93--New Restrictions on Lobbying.
45 CFR Part 1386, subpart A.


Sec. 51.5  Eligibility for allotment.

    (a) Federal financial assistance for protection and advocacy 
activities for individuals with mental illness will be given only to a 
System that has been established under Part C of the Developmental 
Disabilities Assistance and Bill of Rights Act (42 U.S.C. 6041, et 
seq.) and designated in accordance with 45 CFR part 1386, subpart B.
    (b) The P&A system must meet the requirements of sections 105 and 
111 of the Act (42 U.S.C. 10805 and 10821) and that P&A system must be 
operational. Each system shall submit an application at the beginning 
of each PAIMI authorization period. This application shall contain at a 
minimum the program priorities and budget for the first year of the 
authorization period and the required assurances and certifications. 
Thereafter, the system shall submit yearly updates of the budget and 
program priorities for the upcoming fiscal year through its annual 
report.
    (c) Written assurances of compliance with sections 105 and 111 of 
the Act (42 U.S.C. 10805 and 10821) and other requirements of the Act 
and this part shall be submitted by the P&A system in the format 
designated by the Director. These assurances will remain in effect for 
the period specified in the application for funds unless changes occur 
within the State which affect the functioning of the P&A system, in 
which case an amendment will be required 30 days prior to the effective 
date of the change. The P&A system shall also provide the Department 
the name of the designated official.
    (d) The Governor's written assurance that the allotments made 
available under the Act will be used to supplement and not to supplant 
the level of non-Federal funds available in the State to protect and 
advocate the rights of individuals with mental illness shall be 
submitted by the P&A system. The Governor may provide this assurance 
along with the assurances provided to ADD under 45 CFR part 1386, as 
long as it can reasonably be construed as applying to the PAIMI 
program. Any future ``supplement and not supplant'' assurance shall 
explicitly refer to the PAIMI program.


Sec. 51.6  use of allotments.

    (a) Allotments must be used to supplement and not to supplant the 
level of non-Federal funds available in the State to protect and 
advocate the rights of individuals with mental illness.
    (b) Allotments may not be used to support lobbying activities to 
influence proposed or pending Federal legislation or appropriations. 
This restriction does not affect the right of any P&A system, 
organization or individual to petition Congress or any other government 
body or official using other resources.
    (c) Allotments may not be used to produce or distribute written, 
audio or visual materials or publicity intended or designed to support 
or defeat any candidate for public office.
    (d) If an eligible P&A system is a public entity, that P&A system 
shall not be required by the State to obligate more than five percent 
of its annual allotment for State oversight administrative expenses 
under this grant such as costs of internal or external evaluations, 
monitoring or auditing. This restriction does not include:
    (1) Salaries, wages and benefits of program staff;
    (2) Costs associated with attending governing board or advisory 
council meetings; or
    (3) Expenses associated with the provision of training or technical 
assistance for staff, contractors, members of the governing board or 
advisory council.
    (e) No more than ten percent of each annual allotment may be used 
for providing technical assistance and training, including travel 
expenses for staff, contractors, or members of the governing board or 
advisory council as defined in Sec. 51.27.
    (f) Allotments may be used to pay the otherwise allowable costs 
incurred by a P&A system in bringing lawsuits in its own right to 
redress incidents of abuse or neglect, discrimination, and other rights 
violations impacting on individuals with mental illness and when it 
appears on behalf of named plaintiffs or a class of plaintiffs for such 
purposes.


Sec. 51.7  Eligibility for protection and advocacy services.

    In accordance with section 105(a)(1)(C) of the Act (42 U.S.C. 
10805(a)(1)(C)) and the priorities established by the P&A system 
governing authority, together with the advisory council, pursuant to 
section 105(c)(2)(B) of the Act (42 U.S.C. 10805(c)(2)(B)), allotments 
may be used:
    (a) To provide protection and advocacy services for:
    (1) Individuals with mental illness as defined in 42 U.S.C. 
10802(4) and 10805(a), including persons who report matters which 
occurred while they were individuals with mental illness;
    (2) Persons who were individuals with mental illness who are 
residents of the State, but only with respect to matters which occur 
within 90 days after the date of the discharge of such individuals from 
a facility providing care or treatment; and
    (3) Individuals with mental illness in Federal facilities rendering 
care or treatment who request representation by the eligible P&A 
system. Representation may be requested by an individual with mental 
illness, or by a legal guardian, conservator or legal representative.

[[Page 53567]]

    (b) To provide representation of clients in civil commitment 
proceedings if the P&A system is acting on behalf of an eligible 
individual to obtain judicial review of his or her commitment in order 
to appeal or otherwise challenge acts or omissions which have subjected 
the individual to abuse or neglect or otherwise violated his or her 
rights. This restriction does not prevent a P&A system from 
representing clients in commitment or recommitment proceedings using 
other resources so long as this representation does not conflict with 
responsibilities under the Act.


Sec. 51.8  Annual reports.

    By January 1 of each year, a report shall be submitted, pursuant to 
section 105(a)(7) of the Act (42 U.S.C. 10805(a)(7)), to the Secretary 
which is in the format designated by the Secretary.


Sec. 51.9  [Reserved]


Sec. 51.10  Remedial actions.

    Failure to submit an annual report in the designated format on time 
or to submit requested information and documentation, corrective action 
plans and ongoing implementation status reports in response to Federal 
review and monitoring activities or to satisfy any other requirement of 
the Act, this part, or other requirements, may be considered a breach 
of the terms and conditions of the grant award and may required 
remedial action, such as the suspension or termination of an active 
grant, withholding of payments or converting to a reimbursement method 
of payment. Any remedial actions shall be taken consistent with 45 CFR 
Part 74 and 42 CFR Part 50, as appropriate.


Secs. 51.11-51.20  [Reserved]

Subpart B--Program Administration and Priorities


Sec. 51.21  Contracts for program operations.

    (a) An eligible P&A system should work cooperatively with existing 
advocacy agencies and groups and, where appropriate, consider entering 
into contracts for protection and advocacy services with organizations 
already working on behalf of individuals with metal illness. Special 
consideration should be given to contracting for the services of groups 
run by individuals who have received or are receiving mental health 
services or by family members of such individuals.
    (b) An eligible P&A system may contract for the operation of all or 
part of its program with another public or private nonprofit 
organization with demonstrated experience in working with individuals 
with mental illness provided that:
    (1) Any organization that will operate the full program meets the 
requirements of section 104(a)(1), 105 and 111 of the Act (42 U.S.C. 
10804(a)(1), 10805 and 10821) and has the capacity to perform 
protection and advocacy activities throughout the State;
    (2) The eligible P&A system institutes oversight and monitoring 
procedures which ensure that this system will be able to meet all 
applicable terms, conditions and obligations of the Federal grant;
    (3) The eligible P&A system and the contractor organization enter 
into a written agreement that includes at least the following:
    (i) A description of the protection and advocacy services to be 
provided;
    (ii) The type of personnel, their qualifications and training;
    (iii) The methods to be used;
    (iv) A timetable for performance;
    (v) A budget;
    (vi) Assurances that the contractor will meet all applicable terms 
and conditions of the grant;
    (vii) Assurances that the contractor has adequate management and 
fiscal systems in place, including insurance coverage, if appropriate:
    (viii) Assurances that the contractor's staff is trained to provide 
advocacy services to and conduct full investigations on behalf of 
individuals with mental illness; and
    (ix) Assurances that the contractor staff is trained to work with 
family members of clients served by the P&A system where the clients 
are:
    (A) Minors;
    (B) Legally competent and choose to involve the family member; or,
    (C) Legally incompetent and the legal guardians, conservators or 
other legal representatives are family members.


Sec. 51.22  Governing authority.

    (a) Each P&A system shall have a governing authority responsible 
for its planning, designing, implementing and functioning. It shall, 
jointly with the advisory council, annually establish program 
priorities and policies.
    (b) If the P&A system is organized with a multi-member governing 
board:
    (1) Each P&A system shall establish policies and procedures for the 
selection of its governing board members and for the board evaluation 
of the P&A system director. The terms of board members shall be 
staggered and for 4 years except that any member appointed to fill a 
vacancy for an unexpired term shall serve for the remainder of such 
term. A member who has been appointed for a term of 4 years may not be 
reappointed to the governing board during the 2-year period beginning 
on the date on which such 4-year term expired.
    (2) The board shall be composed of members who broadly represent or 
are knowledgeable about the needs of the clients served by the P&A 
system and shall include a significant representation of individuals 
with mental illness who are, or have been eligible for services, or 
have received or are receiving mental health services, and family 
members, guardians, advocates, or authorized representatives of such 
individuals.
    (3) If the governing authority is organized as a private nonprofit 
entity, the chairperson of the advisory council shall be a member of 
the governing board.
    (c) Continuing efforts shall be made to include members of racial 
and ethnic minority groups as board members.
    (d) Any member of the advisory council may also serve on the 
governing board.


Sec. 51.23  Advisory council.

    (a) Each P&A system shall establish an advisory council to:
    (1) Provide independent advice and recommendations to the system.
    (2) Work jointly with the governing authority in the development of 
policies and priorities.
    (3) Submit a section of the system's annual report as required 
under Sec. 51.8.
    (b) Members of the council shall include attorneys, mental health 
professionals, individuals from the public who are knowledgeable about 
mental illness, the advocacy needs of persons with mental illness and 
have demonstrated a substantial commitment to improving mental health 
services, a provider of mental health services, individuals who have 
received or are receiving mental health services and family members of 
such individuals. Continuing efforts shall be made to include members 
of racial and ethnic minority groups on the advisory council.
    (1) At least 60 percent of the membership of the advisory council 
shall be comprised of individuals who have received or are receiving 
mental health services or who are family members of such individuals. 
At least one family member shall be a primary care giver for an 
individual who is currently a minor child or youth who is receiving or 
has received mental health services;
    (2) The council shall be chaired by an individual who has received 
or is receiving mental health services or who is a family member of 
such an individual;

[[Page 53568]]

    (3) The advisory council shall meet no less than three times 
annually. The terms of council members shall be staggered and for 4 
years except that any member appointed to fill a vacancy for an 
unexpired term shall serve for the remainder of such term. A member who 
has been appointed for a term of 4 years may not be reappointed to the 
council during the 2-year period beginning on the date on which such 4-
year term expired.
    (c) Each P&A system shall provide its advisory council with 
reports, materials and fiscal data to enable review of existing program 
policies, priorities and performance outcomes. Such submissions shall 
be made at least annually and shall report expenditures for the past 
two fiscal years, as well as projected expenses for the next fiscal 
year, identified by budget category (e.g., salary and wages, contract 
for services, administrative expenses) including the amount allotted 
for training of each the advisory council, governing board and staff.
    (d) Reimbursement of expenses. (1) Allotments may be used to pay 
for all or a part of the expenses incurred by members of the advisory 
council in order to participate in its activities. Expenses may include 
transportation costs, parking, meals, hotel costs, per diem expenses, 
stipends or subsistence allowances, and the cost of day care or child 
care (or its equivalent for the child's travel and subsistence 
expenses) for their dependents with mental illness or developmental 
disabilities.
    (2) Each P&A system shall establish its own policies and procedures 
for reimbursement of expenses of council members, taking into account 
the needs of individual council members, available resources, and 
applicable restrictions on use of grant funds, including the 
restrictions in Secs. 51.31(e) and 51.6(e).


Sec. 51.24  Program priorities.

    (a) Program priorities and policies shall be established annually 
by the governing authority, jointly with the advisory council. 
Priorities shall specify short-term program goals and objectives, with 
measurable outcomes, to implement the established priorities. In 
developing priorities, consideration shall be given to, at a minimum, 
case selection criteria, the availability of staff and monetary 
resources, and special problems and cultural barriers faced by 
individuals with mental illness who are multiply handicapped or who are 
members of racial or ethnic minorities in obtaining protection of their 
rights. Systemic and legislative activities shall also be addressed in 
the development and implementation of program priorities.
    (b) Members of the public shall be given an opportunity, on an 
annual basis, to comment on the priorities established by, and the 
activities of, the P&A system. Procedures for public comment must 
provide for notice in a format accessible to individuals with mental 
illness, including such individuals who are in residential facilities, 
to family members and representatives of such individuals and to other 
individuals with disabilities. Procedures for public comment must 
provide for receipt of comments in writing or in person.


Sec. 51.25  Grievance procedure.

    (a) The P&A system shall establish procedures to address grievances 
from:
    (1) Clients or prospective clients of the P&A system to assure that 
individuals with mental illness have full access to the services of the 
program; and
    (2) Individuals who have received or are receiving mental health 
services in the State, family members of such individuals, or 
representatives of such individuals or family members to assure that 
the eligible P&A system is operating in compliance with the Act.
    (b) At a minimum, the grievance procedures shall provide for:
    (1) An appeal to the governing authority from any final staff 
review and/or determination; in cases where the governing authority is 
the director of the P&A system, the final review and/or determination 
shall be made by a superior of the governing authority, e.g., a 
supervisor, or by an independent entity, e.g., an appointed board or 
committee.
    (2) Reports, at least annually, to the governing authority and the 
advisory council describing the grievances received and processed and 
their resolution;
    (3) Identification of individuals responsible for review;
    (4) A timetable to ensure prompt notification concerning the 
grievance procedure to clients, prospective clients or persons denied 
representation, and to ensure prompt resolution;
    (5) A written response to the grievant; and
    (6) Protection of client confidentiality.


Sec. 51.26  Conflicts of interest.

    The P&A system must develop appropriate policies and procedures to 
avoid actual or apparent conflict of interest involving clients, 
employees, contractors and subcontractors, and members of the governing 
authority and advisory council, particularly with respect to matters 
affecting client services, particular contracts and subcontracts, 
grievance review procedures, reimbursements and expenses, and the 
employment or termination of staff.


Sec. 51.27  Training.

    A P&A system shall provide training for program staff, and may also 
provide training for contractors, governing board and advisory council 
members to enhance the development and implementation of effective 
protection and advocacy services for individuals with mental illness, 
including at a minimum:
    (a)(1) Training of program staff to work with family members of 
clients served by the program where the individual with mental illness 
is:
    (i) A minor,
    (ii) Legally competent and chooses to involve the family member; or
    (iii) Legally incompetent and the legal guardian, conservator or 
other legal representative is a family member.
    (2) This training may be provided by individuals who have received 
or are receiving mental health services and family members of such 
individuals.
    (b) Training to enhance sensitivity to and understanding of 
individuals with mental illness who are members of racial or ethnic 
minorities and to develop strategies for outreach to those populations.
    (c) Training to conduct full investigations of abuse or neglect.


Secs. 51.28-51.30  [Reserved]

Subpart C--Protection and Advocacy Services


Sec. 51.31  Conduct of protection and advocacy activities.

    (a) Consistent with State and Federal law and the canons of 
professional ethics, a P&A system may use any appropriate technique and 
pursue administrative, legal or other appropriate remedies to protect 
and advocate on behalf of individuals with mental illness to address 
abuse, neglect or other violations of rights.
    (b) A P&A system shall establish policies and procedures to guide 
and coordinate advocacy activities. The P&A system shall not implement 
a policy or practice restricting the remedies which may be sought on 
behalf of individuals with mental illness or compromising the authority 
of the P&A system to pursue such remedies through litigation, legal 
action or other forms of advocacy. However, this requirement does not 
prevent the P&A system from placing limitations on case or client 
acceptance criteria developed as part of the annual

[[Page 53569]]

priorities. Prospective clients must be informed of any such 
limitations at the time they request service.
    (c) Wherever possible, the program should establish an ongoing 
presence in residential mental health care or treatment facilities, and 
relevant hospital units.
    (d) Program activities should be carried out in a manner which 
allows program staff to:
    (1) Interact regularly with those individuals who are current or 
potential recipients of protection and advocacy services;
    (2) Interact regularly with staff providing care or treatment;
    (3) Obtain information and review records; and
    (4) Communicate with family members, social and community service 
workers and others involved in providing care or treatment.
    (e) A P&A system may support or provide training, including related 
travel expenses, for individuals with mental illness, family members of 
such individuals, and other persons who are not program staff, 
contractors, or board or council members, to increase knowledge about 
protection and advocacy issues, to enhance leadership capabilities, or 
to promote Federal-State and intra-State cooperation on matter related 
to mental health system improvement. Decisions concerning the selection 
of individuals to receive such training shall be made in accordance 
with established policies, procedures and priorities of the P&A system.
    (f) A P&A system may monitor, evaluate and comment on the 
development and implementation of Federal, State and local laws, 
regulations, plans, budgets, levies, projects, policies and hearings 
affecting individuals with mental illness as a part of federally funded 
advocacy activities. A P&A system shall carry out systemic advocacy--
those efforts to implement changes in policies and practices of systems 
that impact persons with mental illness.
    (g) Determination of ``probable cause'' may result from P&A system 
monitoring or other activities, including observation by P&A system 
personnel, and reviews of monitoring and other reports prepared by 
others whether pertaining to individuals with mental illness or to 
general conditions affecting their health or safety.
    (h) A P&A which is a public P&A system shall be free from hiring 
freezes, reductions in force, prohibitions on staff travel, or other 
policies imposed by the State to the extend that such policies would 
impact program staff or activities funded with Federal dollars and 
would prevent the P&A system from carrying out its mandates under the 
Act.
    (i) A P&A system may exercise its authority under State law where 
the authority exceeds the authority required by the Act. However, State 
law must not diminish the required authority of the Act.


Sec. 51.32  Resolving disputes.

    (a) Each P&A system is encouraged to develop and employ techniques 
such as those involving negotiation, conciliation and mediation to 
resolve disputes early in the protection and advocacy process.
    (b) Disputes should be resolved whenever possible through 
nonadversarial process involving negotiation, mediation and 
conciliation. Consistent with State and Federal laws and canons of 
professional responsibility, family members should be involved in this 
process, as appropriate, where the individual with mental illness is:
    (1) A minor,
    (2) Legally competent and chooses to involve the family member, or
    (3) Legally incompetent and the legal guardian, conservator or 
other legal representative is a family member or the legal guardian, 
conservator or other legal representative chose to involve the family 
member.
    (c) A P&A system must exhaust in a timely manner all administrative 
remedies, where appropriate, prior to initiating legal action in a 
Federal or State court.
    (d) Paragraph (c) of this section does not apply to any legal 
action instituted to prevent or eliminate imminent serious harm to an 
individual with mental illness nor does it apply in circumstances where 
administrative procedures do not exist. If in pursing administrative 
remedies, the P&A system determines that any matter with respect to an 
individual with mental illness with mental illness with not be resolved 
within a reasonable time, the P&A system may pursue alternative 
remedies, including initiating legal action.
    (e) A P&A system shall be held to the standard of exhaustion of 
remedies provided under State and Federal law. The Act imposes no 
additional burden respecting exhaustion of remedies.


Secs. 51.33-51.40  [Reserved]

Subpart D--Access to Records, Facilities and Individuals


Sec. 51.41  Access to records.

    (a) Access to records shall be extended promptly to all authorized 
agents of a P&A system.
    (b) A P&A system shall have access to the records of any of the 
following individuals with mental illness:
    (1) An individual who is a client of the P&A system if authorized 
by that individual or the legal guardian, conservator or other legal 
representative.
    (2) An individual, including an individual who has died or whose 
whereabouts is unknown to whom all of the following conditions apply:
    (i) The individual, due to his or her mental or physical condition, 
is unable to authorize the P&A system to have access.
    (ii) The individual does not have a legal guardian, conservator or 
other legal representative, or the individual's guardian is the State 
or one of its political subdivisions; and
    (iii) A complaint or report has been received and the P&A system 
has determined that there is probable cause to believe that the 
individual has been or may be subject to abuse or neglect.
    (3) An individual who has a legal guardian, conservator, or other 
legal representative, with respect to whom a complaint or report has 
been received by the P&A system and with respect to whom the P&A system 
has determined that there is probable cause to believe that the health 
or safety of the individual is in serious and immediate jeopardy, 
whenever all of the following conditions exists:
    (i) The P&A system has made a good faith effort to contact the 
representative upon prompt receipt of the representative's name and 
address;
    (ii) The P&A system has made a good faith effort to offer 
assistance to the representative to resolve the situation; and
    (iii) The representative has failed or refused to act on behalf of 
the individual.
(c) Information and individual records, whether written or in another 
medium, draft or final, including handwritten notes, electronic files, 
photographs or video or audio tape records, which shall be available to 
the P&A system under the Act shall include, but not be limited to:
    (1) Information and individual records, obtained in the course of 
providing intake, assessment, evaluation, supportive and other 
services, including medical records, financial records, and reports 
prepared or received by a member of the staff of a facility or program 
rendering care or treatment. This includes records stored or maintained 
in locations other than the facility or program as long as the system 
has obtained appropriate consent consistent with section

[[Page 53570]]

105(a)(4) of the Act. The system shall request of facilities that in 
requesting records from service providers or other facilities on 
residents that they indicate in the release form the records may be 
subject to review by a system.
    (2) Reports prepared by an agency charged with investigating abuse 
neglect, or injury occurring at a facility rendering care or treatment, 
or by or for the facility itself, that describe any or all of the 
following:
    (i) Abuse, neglect, or injury occurring at the facility;
    (ii) The steps taken to investigate the incidents;
    (iii) Reports and records, including personnel records, prepared or 
maintained by the facility, in connection with such reports of 
incidents; or
    (iv) Supporting information that was relied upon in creating a 
report, including all information and records used or reviewed in 
preparing reports of abuse, neglect or injury such as records which 
describe persons who were interviewed, physical and documentary 
evidence that was reviewed, and the related investigative findings.
    (3) Discharge planning records.
    (4) Reports prepared by individuals and entities performing 
certification or licensure reviews, or by professional accreditation 
organizations, as well as related assessments prepared for the facility 
by its staff, contractors or related entities, except that nothing in 
this section is intended to preempt State law protecting records 
produced by medical care evaluation or peer review committees.
    (5) Professional, performance, building or other safety standards, 
demographic and statistical information relating to the facility.
    (d) A P&A system shall have reasonable access and authority to 
interview and examine all relevant records of any facility service 
recipient (consistent with the provisions of section 105(a)(4) of the 
Act) or employee.
    (e) A P&A system shall be permitted to inspect and copy records, 
subject to a reasonable charge to offset duplicating costs.


Sec. 51.42  Access to Facilities and residents.

    (a) Access to facilities and residents shall be extended to all 
authorized agents of a P&A system.
    (b) A P&A system shall have reasonable unaccompanied access to 
public and private facilities and programs in the State which render 
care or treatment for individuals with mental illness, and to all areas 
of the facility which are used by residents or are accessible to 
residents. The P&A system shall have reasonable unaccompanied access to 
residents at all times necessary to conduct a full investigation of an 
incident of abuse or neglect. This authority shall include the 
opportunity to interview any facility service recipient, employee, or 
other persons, including the person thought to be the victim of such 
abuse, who might be reasonably believed by the system to have knowledge 
of the incident under investigation. Such access shall be afforded, 
upon request, by the P&A system when:
    (1) An incident is reported or a complaint is made to the P&A 
system;
    (2) The P&A system determines there is probable cause to believe 
that an incident has or may have occurred; or
    (3) The P&A system determines that there is or may be imminent 
danger of serious abuse or neglect of an individual with mental 
illness.
    (c) In addition to access as prescribed in paragraph (b) of this 
section, a P&A system shall have reasonable unaccompanied access to 
facilities including all area which are used by residents, are 
accessible to residents, and to programs and their residents at 
reasonable times, which at a minimum shall include normal working hours 
and visiting hours. Residents include adults or minors who have legal 
guardians or conservators. P&A activities shall be conducted so as to 
minimize interference with facility programs, respect residents' 
privacy interests, and honor a resident's request to terminate an 
interview. This access is for the purpose of:
    (1) Providing information and training on, and referral to programs 
addressing the needs of individuals with mental illness, and 
information and training about individual rights and the protection and 
advocacy services available from the P&A system, including the name, 
address, and telephone number of the P&A system.
    (2) Monitoring compliance with respect to the rights and safety of 
residents; and
    (3) Inspecting, viewing and photographing all areas of the facility 
which are used by residents or are accessible to residents.
    (d) Unaccompanied access to residents shall include the opportunity 
to meet and communicate privately with individuals regularly, both 
formally and informally, by telephone, mail and in person. Residents 
include minors or adults who have legal guardians or conservators.
    (e) The right of access specified in paragraph (c) of this section 
shall apply despite the existence of any State or local laws or 
regulations which restrict informal access to minors and adults with 
legal guardians or conservators. The system shall make very effort to 
ensure that the parents of minors or guardians of individuals in the 
care of a facility are informed that the system will be monitoring 
activities at the facility and may in the course of such monitoring 
have access to the minor or adult with a legal guardian. The system 
shall take no formal action on behalf of individuals with legal 
guardians or conservators, or initiate a formal attorney/client or 
advocate/client relationship without appropriate consent, except in 
emergency situations as described in Sec. 51.41(b)(3).
    (f) A P&A system providing representation to individuals with 
mental illness in Federal facilities shall have all the rights and 
authority accorded other representatives of residents of such 
facilities pursuant to State and Federal laws.


Sec. 51.43  Denial of delay or access.

    If a P&A system's access to facilities, programs, residents or 
records covered by the Act or this part is delayed or denied, the P&A 
system shall be provided promptly with a written statement of reasons, 
including, in the case of a denial for alleged lack of authorization, 
the name, address and telephone number of the legal guardian, 
conservator, or other legal representative of an individual with mental 
illness. Access to facilities, records or residents shall not be 
delayed or denied without the prompt provision of written statements of 
the reasons for the denial.


Sec. 51.44  [Reserved]


Sec. 51.45  Confidentiality of protection and advocacy system records.

    (a) Records maintained by the P&A system are the property of the 
P&A system which must protect them from loss, damage, tampering or use 
by unauthorized individuals. 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