[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: 42CFR51.42]

[Page 164-165]
 
                         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. 51.42  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;

[[Page 165]]

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