53548 Federal Register / Vol. 62, No. 199 / Wednesday, October 15, 1997 / Rules and Regulations

§ 52.1070 Identification of plan.

* * * * *

(c) * * *

(125) Revisions to the Maryland State

Implementation Plan submitted on July

12, 1995 by the Maryland Department of

the Environment:

(i) Incorporation by reference.

(A) Four letters dated July 12, 1995

from the Maryland Department of the

Environment transmitting additions to

Maryland’s State Implementation Plan,

pertaining to volatile organic compound

(VOC) regulations in Maryland’s air

quality regulations, COMAR 26.11.

(B) Regulations:

(1) Addition of new COMAR

26.11.19.17 Control of VOC Emissions

from Yeast Manufacturing, adopted by

the Secretary of the Environment on

October 14, 1994 and effective on

November 7, 1994, revisions adopted by

the Secretary of the Environment on

May 12, 1995, and effective on June 5,

1995, including the following:

(i) Addition of new COMAR

26.11.19.17.A Definitions, including

definitions for the terms ‘‘fermentation

batch,’’ ‘‘first generation fermenter,’’

‘‘stock fermenter,’’ ‘‘trade fermenter,’’

and ‘‘yeast manufacturing installation.’’

(ii) Addition of new COMAR

26.11.19.17.B Applicability,

Exemptions, and Compliance Date.

(iii) Addition of new COMAR

26.11.19.17.C Requirements for Yeast

Manufacturing Installations.

(iv) Addition of new COMAR

26.11.19.17.D Determination of

Compliance and Testing.

(v) Addition of new COMAR

26.11.19.17.E Reporting Requirements.

(vi) Amendment to COMAR

26.11.19.17.C(3), pertaining to limits for

temperature and pH.

(vii) Amendment to COMAR

26.11.19.17.D(3), pertaining to stack test

dates.

(2) Addition of new COMAR

26.11.19.18 Control of VOC Emissions

from Screen Printing, adopted by the

Secretary of the Environment on

October 14, 1994 and effective on

November 7, 1994, revisions adopted by

the Secretary of the Environment on

May 16, 1995 and effective on June 5,

1995, including the following:

(i) Addition of new COMAR

26.11.19.18.A, including definitions for

the terms ‘‘acid/etch resist ink,’’

‘‘anoprint ink,’’ ‘‘back-up coating,’’

‘‘clear coating,’’ ‘‘conductive ink,’’

‘‘electroluminescent ink,’’ ‘‘exterior

illuminated sign,’’ ‘‘haze removal,’’ ‘‘ink

removal,’’ ‘‘maximum VOC content,’’

‘‘plastic card manufacturing

installation,’’ ‘‘plywood sign coating,’’

‘‘screen printing,’’ ‘‘screen printing

installation,’’ ‘‘screen reclamation,’’

‘‘specialty inks.’’

(ii) Addition of new COMAR

26.11.19.18.B Applicability.

(iii) Addition of new COMAR

26.11.19.18.C General Requirements for

Screen Printing.

(iv) Addition of new COMAR

26.11.19.18.D General Requirements for

Plywood Sign Coating.

(v) Addition of new COMAR

26.11.19.18.E General Requirements for

Plastic Card Manufacturing

Installations.

(vi) Addition of new COMAR

26.11.19.18.F Control of VOC Emissions

from the Use of Specialty Inks.

(vii) Addition of new COMAR

26.11.19.18.G Control of VOC Emissions

from Clear Coating Operations.

(viii) Addition of new COMAR

26.11.19.18.H Control of VOC Emissions

from Ink and Haze Removal and Screen

Reclamation.

(ix) Addition of new COMAR

26.11.19.18.I.

(x) Addition of new COMAR

26.11.19.18.A(17), definition for the

term ‘‘untreated sign paper.’’

(xi) Addition of new COMAR

26.11.19.18.C(2), replacing previous

§ C(2).

(xii) Addition of new COMAR

26.11.19.18.C(3) Use of Control Devices.

(xiii) Addition of new COMAR

26.11.19.18.E(2)(b), replacing previous

§ E(2)(b).

(xiv) Addition of new COMAR

26.11.19.18.I Record Keeping, replacing

the previous § I.

(3) Addition of new COMAR

26.11.19.19 Control of VOC Emissions

from Expandable Polystyrene

Operations, adopted by the Secretary of

the Environment on June 9, 1995, and

effective on July 3, 1995, including the

following:

(i) Addition of new COMAR

26.11.19.19.A Definitions.

(ii) Addition of new COMAR

26.11.19.19.B Terms Defined, including

definitions for the terms ‘‘expandable

polystyrene operation (EPO),’’ ‘‘blowing

agent,’’ ‘‘preexpander,’’ ‘‘recycled

expanded polystyrene,’’ and ‘‘reduced

VOC content beads.’’

(iii) Addition of new COMAR

26.11.19.19.C Applicability.

(iv) Addition of new COMAR

26.11.19.19.D General Requirements.

(v) Addition of new COMAR

26.11.19.19.E Testing Requirements.

(vi) Addition of new COMAR

26.11.19.19.F Record Keeping.

(4) Addition of new COMAR

26.11.19.21, Control of VOC Emissions

from Commercial Bakery Ovens,

adopted by the Secretary of the

Environment on June 9, 1995, and

effective on July 3, 1995.

(i) Addition of new COMAR

26.11.19.21.A Definitions.

(ii) Addition of new COMAR

26.11.19.21.B Terms Defined, including

definitions for the terms ‘‘commercial

bakery oven,’’ ‘‘fermentation time,’’

‘‘yeast percentage,’’ and ‘‘Yt value.’’

(iii) Addition of new COMAR

26.11.19.21.C Applicability and

Exemptions.

(iv) Addition of new COMAR

26.11.19.21.D General Requirements.

(v) Addition of new COMAR

26.11.19.21.E Use of Innovative Control

Methods.

(vi) Addition of new COMAR

26.11.19.21.F Reporting and Testing

Requirements.

(ii) Additional material.

(A) Remainder of July 12, 1995

Maryland State submittals pertaining to

COMAR 26.11.19.21, .17, .18, and .19.

* * * * *

[FR Doc. 97–27260 Filed 10–14–97; 8:45 am]

BILLING CODE 6560–50–P

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.

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
Federal Register / Vol. 62, No. 199 / Wednesday, October 15, 1997 / Rules and Regulations 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.
53550 Federal Register / Vol. 62, No. 199 / Wednesday, October 15, 1997 / Rules and Regulations

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 § 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
Federal Register / Vol. 62, No. 199 / Wednesday, October 15, 1997 / Rules and Regulations 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 § 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
53552 Federal Register / Vol. 62, No. 199 / Wednesday, October 15, 1997 / Rules and Regulations

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.
Federal Register / Vol. 62, No. 199 / Wednesday, October 15, 1997 / Rules and Regulations 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
53554 Federal Register / Vol. 62, No. 199 / Wednesday, October 15, 1997 / Rules and Regulations

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 postdischarge period, but the legislative

history shows that the general intent of

Congress was that the 90-day postdischarge 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 postdischarge 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.
Federal Register / Vol. 62, No. 199 / Wednesday, October 15, 1997 / Rules and Regulations 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
53556 Federal Register / Vol. 62, No. 199 / Wednesday, October 15, 1997 / Rules and Regulations

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
Federal Register / Vol. 62, No. 199 / Wednesday, October 15, 1997 / Rules and Regulations 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 nonFederal 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).
53558 Federal Register / Vol. 62, No. 199 / Wednesday, October 15, 1997 / Rules and Regulations

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. Selfadvocacy 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
Federal Register / Vol. 62, No. 199 / Wednesday, October 15, 1997 / Rules and Regulations 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
53560 Federal Register / Vol. 62, No. 199 / Wednesday, October 15, 1997 / Rules and Regulations

thorough. The Department agrees that

any or all of the above-named records

may be considered relevant on a caseby-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 inhouse incident reports, certification and

licensing reports, facility selfassessment 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
Federal Register / Vol. 62, No. 199 / Wednesday, October 15, 1997 / Rules and Regulations 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 weekdays, 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
53562 Federal Register / Vol. 62, No. 199 / Wednesday, October 15, 1997 / Rules and Regulations

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
Federal Register / Vol. 62, No. 199 / Wednesday, October 15, 1997 / Rules and Regulations 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
53564 Federal Register / Vol. 62, No. 199 / Wednesday, October 15, 1997 / Rules and Regulations

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:

Annual

number of

respondents

Annual

frequency

Average

burden per

response

(hours)

Annual burden hours

Section 51.8 Program ....................................................................................................... 56 1 .................... ....................

Performance Report:

Part I .......................................................................................................................... .................... .................... 33 ....................

Part II ......................................................................................................................... .................... .................... 2 ....................

(Subtotal) ................................................................................................................... .................... .................... (35) 1,960

Section 51.8 Advisory Council Report ............................................................................. 56 1 10 560

Section 51.10 Remedial Actions:

Corrective Action Plan ............................................................................................... 6 1 8 48

Implementation Status Report .......................................................................................... 6 3 2 36

Section 51.23(c) Reports, materials and fiscal data to Advisory Council ........................ 56 1 1 56

Section 51.25(b)(2) Grievance Procedure ....................................................................... 56 1 .5 28

Total ....................................................................................................................... .................... .................... .................... 2,688

In compliance with Section

3506(c)(2)(A) of the Paperwork

Reduction Act of 1995, the Substance

Abuse and Mental Health Services

Administration is providing the public

with the opportunity to comment on the

information collection requirements

contained in this final rule. In order to

fairly evaluate whether a collection of

information should be approved by the

Office of Management and Budget

(OMB), the Paperwork Reduction Act

requires that we solicit comments on:

• whether the proposed collection of

information is necessary for the proper

performance of the functions of the

Agency, including whether the

information shall have practical utility;

• the accuracy of the Agency’s

estimate of the burden of the proposed

collection of information;

• ways to enhance the quality, utility,

and clarity of the information to be

collected; and

• ways to minimize the burden of the

collection of information on

respondents, including through the use

of automated collection techniques or

other forms of information technology.

Comments on the Paperwork

requirement of this regulation should be

sent to: Daniel J. Chenok, Office of

Information and Regulatory Affairs,

Office of Management and Budget, New

Executive Office Building, Room 10236,

Washington, DC 20503. Written

comments should be received within 60

days of this notice.

List of Subjects in 42 CFR Part 51

Administrative practice and

procedure, Grant programs—health

programs. Grant programs—social

programs, Health records, Mental health

programs, Privacy, Reporting and

recordkeeping requirements.

Dated: October 2, 1997.

Donna E. Shalala,

Secretary.

Accordingly, part 51 is added to title

42 of the Code of Federal Regulations to

read as follows:

PART 51—REQUIREMENTS

APPLICABLE TO THE PROTECTION

AND ADVOCACY FOR INDIVIDUALS

WITH MENTAL ILLNESS PROGRAM

Sec.

51.1 Scope.

51.2 Definitions.

Subpart A—Basic Requirements

51.3 Formula for determining allotments.

51.4 Grants administration requirements.

51.5 Eligibility for allotment.

51.6 Use of allotments.

51.7 Eligibility for protection and advocacy

services.

51.8 Annual reports.

51.9 [Reserved]

51.10 Remedial actions.

51.11–51.20 [Reserved]

Subpart B—Program Administration and

Priorities

51.21 Contracts for program operations.

51.22 Governing authority.

51.23 Advisory council.

51.24 Program priorities.

51.25 Grievance procedure.

51.26 Conflicts of interest.

51.27 Training.

51.28–51.30 [Reserved]
Federal Register / Vol. 62, No. 199 / Wednesday, October 15, 1997 / Rules and Regulations 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.

§ 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.

§ 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.
53566 Federal Register / Vol. 62, No. 199 / Wednesday, October 15, 1997 / Rules and Regulations

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

§ 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).

§ 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 Governmentwide 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.

§ 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.

§ 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 § 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.

§ 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.
Federal Register / Vol. 62, No. 199 / Wednesday, October 15, 1997 / Rules and Regulations 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.

§ 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.

§ 51.9 [Reserved]

§ 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.

§§ 51.11–51.20 [Reserved]

Subpart B—Program Administration

and Priorities

§ 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.

§ 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.

§ 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 § 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;
53568 Federal Register / Vol. 62, No. 199 / Wednesday, October 15, 1997 / Rules and Regulations

(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 §§ 51.31(e)

and 51.6(e).

§ 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.

§ 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.

§ 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.

§ 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.

§§ 51.28–51.30 [Reserved]

Subpart C—Protection and Advocacy

Services

§ 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
Federal Register / Vol. 62, No. 199 / Wednesday, October 15, 1997 / Rules and Regulations 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.

§ 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.

§§ 51.33–51.40 [Reserved]

Subpart D—Access to Records,

Facilities and Individuals

§ 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
53570 Federal Register / Vol. 62, No. 199 / Wednesday, October 15, 1997 / Rules and Regulations

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.

§ 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 § 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.

§ 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.

§ 51.44 [Reserved]

§ 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
Federal Register / Vol. 62, No. 199 / Wednesday, October 15, 1997 / Rules and Regulations 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.

§ 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

DEPARTMENT OF HEALTH AND

HUMAN SERVICES

Health Care Financing Administration

42 CFR Part 433

[MB–113–F]

RIN: 0938–AI30

Medicaid Program; Limitation on

Provider-Related Donations and Health

Care-Related Taxes; Revision of

Waiver Criteria for Tax Programs

Based Exclusively on Regional

Variations; Correction

AGENCY: Health Care Financing

Administration (HCFA), HHS.

ACTION: Correcting amendment.

SUMMARY: This document contains a

correction to the final regulations that

were published in the Federal Register

on August 13, 1993 (58 FR 43156).

These regulations revised the Medicaid

regulations relating to limitations on

federal financial participation (FFP) in

State medical assistance expenditures

when States receive funds from

provider-related donations and revenues

generated by certain health care-related

taxes.

EFFECTIVE DATE: September 13, 1993.

FOR FURTHER INFORMATION CONTACT:

Jim Frizzera, (410) 786–9535.

SUPPLEMENTARY INFORMATION: On August

13, 1993, we published final regulations

that further implemented statutory

provisions that limit the amount of

Federal financial participation (FFP)

available for medical assistance

expenditures in a fiscal year when

States receive funds donated from

providers and revenues generated by

certain health care related taxes. The

August 13, 1993 final rule amended on

interim final rule that was published in

the Federal Register on November 24,

1992 that established in regulations the

statutory limitations.

In general, the statute specified the

types of health care related taxes that a

State is permitted to receive without a

reduction in FFP. Such taxes are broadbased taxes that apply in a uniform

manner to all health care providers in a

class, and that do not hold providers

harmless for their tax costs. If, however,

a State tax is not broad-based and

uniform, a State may submit a waiver

application to us requesting that we