[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: 42CFR51.42]



[Page 161-162]

 

                         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;

    (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



[[Page 162]]



the rights and authority accorded other representatives of residents of 

such facilities pursuant to State and Federal laws.