[Code of Federal Regulations]

[Title 42, Volume 1]

[Revised as of October 1, 2005]

From the U.S. Government Printing Office via GPO Access

[CITE: 42CFR51.41]



[Page 160-161]

 

                         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:

    (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.



[[Page 161]]



    (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.