[Code of Federal Regulations]

[Title 42, Volume 1]

[Revised as of October 1, 2006]

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

[CITE: 42CFR51.45]



[Page 162-163]

 

                         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.  51.45  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 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



[[Page 163]]



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.