[Code of Federal Regulations]
[Title 42, Volume 1]
[Revised as of October 1, 2002]
From the U.S. Government Printing Office via GPO Access
[CITE: 42CFR51.41]

[Page 163-164]
 
                         TITLE 42--PUBLIC HEALTH
 
    CHAPTER I--PUBLIC HEALTH SERVICE, DEPARTMENT OF HEALTH AND HUMAN 
                                SERVICES
 
PART 51--REQUIREMENTS APPLICABLE TO THE PROTECTION AND ADVOCACY FOR INDIVIDUALS WITH MENTAL ILLNESS PROGRAM--Table of Contents
 
        Subpart D--Access to Records, Facilities and Individuals
 
Sec. 51.41  Access to records.


    (a) Access to records shall be extended promptly to all authorized 
agents of a P&A system.
    (b) A P&A system shall have access to the records of any of the 
following individuals with mental illness:
    (1) An individual who is a client of the P&A system if authorized by 
that individual or the legal guardian, conservator or other legal 
representative.
    (2) An individual, including an individual who has died or whose 
whereabouts is unknown to whom all of the following conditions apply:
    (i) The individual, due to his or her mental or physical condition, 
is unable to authorize the P&A system to have access.
    (ii) The individual does not have a legal guardian, conservator or 
other legal representative, or the individual's guardian is the State or 
one of its political subdivisions; and
    (iii) A complaint or report has been received and the P&A system has 
determined that there is probable cause to believe that the individual 
has been or may be subject to abuse or neglect.
    (3) An individual who has a legal guardian, conservator, or other 
legal representative, with respect to whom a complaint or report has 
been received by the P&A system and with respect to whom the P&A system 
has determined that there is probable cause to believe that the health 
or safety of the individual is in serious and immediate jeopardy, 
whenever all of the following conditions exists:

[[Page 164]]

    (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 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.