42 C.F.R. § 51.2

Definitions

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In addition to the definitions in section 102 of the Act, as amended, the following definitions apply:

Abuse means any act or failure to act by an employee of a facility rendering care or treatment which was performed, or which was failed to be performed, knowingly, recklessly, or intentionally, and which caused, or may have caused, injury or death to an individual with mental illness, and includes but is not limited to acts such as: rape or sexual assault; striking; the use of excessive force when placing an individual with mental illness in bodily restrains; the use of bodily or chemical restraints which is not in compliance with Federal and State laws and regulations; verbal, nonverbal, mental and emotional harassment; and any other practice which is likely to cause immediate physical or psychological harm or result in long-term harm if such practices continue.

Act means the Protection and Advocacy for Mentally Ill Individuals Act of 1986, as amended, also referred to as Protection and Advocacy for Individuals with Mental Illness Act.

ADD means the Administration on Developmental Disabilities within the Administration for Children and Families, Department of Health and Human Services.

Care or Treatment means services provided to prevent, identify, reduce or stabilize mental illness or emotional impairment such as mental health screening, evaluation, counseling, biomedical, behavioral and psychotherapies, supportive or other adjunctive therapies, medication supervision, special education and rehabilitation, even if only “as needed” or under a contractual arrangement.

Center or CMHS means the Center for Mental Health Services, a component of the Substance Abuse and Mental Health Services Administration.

Complaint includes, but is not limited to any report or communication, whether formal or informal, written or oral, received by the P&A system, including media accounts, newspaper articles, telephone calls (including anonymous calls) from any source alleging abuse or neglect of an individual with mental illness.

Department or HHS means the U.S. Department of Health and Human Services.

Designated Official is the State official or public or private entity empowered by the Governor or State legislature to be accountable for the proper use of funds by the P&A system.

Director means the Director of the Center for Mental Health Services, Substance Abuse and Mental Health Services Administration, or his or her designee.

Facility includes any public or private residential setting that provides overnight care accompanied by treatment services. Facilities include, but are not limited to the following: general and psychiatric hospitals, nursing homes, board and care homes, community housing, juvenile detention facilities, homeless shelters, and jails and prisons, including all general areas as well as special mental health or forensic units.

Fiscal Year or FY means the Federal fiscal year (October 1-September 30) unless otherwise specified.

Full Investigation is based upon a complaint or a determination of probable cause and means the access to facilities, clients and records authorized under this part that is necessary for a P&A system to make a determination about whether an allegation of abuse or neglect is taking place or has taken place. Full investigations may be conducted independently or in cooperation with other agencies authorized to conduct similar investigations.

Governor means the chief executive officer of the State, Territory or the District of Columbia, or his or her designee, who has been formally designated to act for the Governor in carrying out the requirements of the Act and this part.

Individual with Mental Illness means an individual who has a significant mental illness or emotional impairment, as determined by a mental health professional qualified under the laws and regulations of the State and

(1) Who is an inpatient or resident in a facility rendering care or treatment, even if the whereabouts of such impatient or resident is unknown;

(2) Who is in the process of being admitted to a facility rendering care or treatment, including persons being transported to such a facility, or

(3) Who is involuntarily confined in a detention facility, jail or prison.

Legal Guardian, Conservator, and Legal Representative all mean an individual whose appointment is made and regularly reviewed by a State court or agency empowered under State law to appoint and review such officers, and having authority to consent to health/mental health care or treatment of an individual with mental illness. It does not include persons acting only as a representative payee, persons acting only to handle financial payments, attorneys or persons acting on behalf of an individual with mental illness only in individual legal matters, or officials responsible for the provision of health or mental health services to an individual with mental illness, or their designees.

Neglect means a negligent act or omission by an individual responsible for providing services in a facility rendering care or treatment which caused or may have caused injury or death to an individual with mental illness or which placed an individual with mental illness at risk of injury or death, and includes, but is not limited to, acts or omissions such as failure to: establish or carry out an appropriate individual program or treatment plan (including a discharge plan); provide adequate nutrition, clothing, or health care; and the failure to provide a safe environment which also includes failure to maintain adequate numbers of appropriately trained staff.

Private Entity means a nonprofit or for-profit corporation, partnership or other nongovernmental organization.

Probable cause means reasonable grounds for belief that an individual with mental illness has been, or may be at significant risk of being subject to abuse or neglect. The individual making such determination may base the decision on reasonable inferences drawn from his or her experience or training regarding similar incidents, conditions or problems that are usually associated with abuse or neglect.

Program means activities carried out by the P&A system and operating as part of a P&A system to meet the requirements of the Act.

Public Entity means an organizational unit of a State or local government or a quasi-governmental entity with one or more governmental powers.

System means the organization or agency designated in a State to administer and operate a protection and advocacy program under Part C of the Developmental Disabilities Assistance and Bill of Rights Act (42 U.S.C. 6041, 6042) and thereby eligible to administer a program for individuals with mental illness.

Notes of Decisions

Cited in 19 cases (1 in the last 5 years), 1999–2024 · leading case: Disability Rights Ohio v. Buckeye Ranch, Inc., 375 F. Supp. 3d 873 (S.D. Ohio 2019).

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Disability Rights Ohio v. Buckeye Ranch, Inc., 375 F. Supp. 3d 873 (S.D. Ohio 2019). · cites it 2× “42 C.F.R. §§ 51.2 , 51.31(g). In light of the explicit definition of "probable cause" for purposes of the PAIMI Act, the standard Fourth Amendment definition of "probable cause" does not apply to the access rights of P & A systems such as DRO.”

Off. of Prot. & Advocacy for Persons With Disabilities v. Armstrong, 266 F. Supp. 2d 303 (D. Conn. 2003). · cites it 2× “” 42 C.F.R. § 51.2 . 7 While the definition of facility in this regulation may be broader than the language in PAMII, it nevertheless sheds light on how HHS interpreted Congress’ intent in relationship to the impact of PAMII on general populations in jails and prisons.”

Wisconsin Coalition for Advocacy, Inc. v. Czaplewski, 131 F. Supp. 2d 1039 (E.D. Wis. 2001). · cites it 2× “Czaplewski is the Acting Administrator of the Shores, a facility as defined at 42 C.F.R. § 51.2 and 45 C.F.R. § 1386.19 , and has sole responsibility for administering the licensed and certified facility owned by AMS Green Tree, Inc.”

Connecticut Off. of Prot. & Advocacy for Persons With Disabilities v. Hartford Bd. of Educ., 355 F. Supp. 2d 649 (D. Conn. 2005). · cites it 2× “42 C.F.R. § 51.2 (2004) (“Facility includes any public or private residential setting that provides overnight care accompanied by treatment services.”

Lakey v. Taylor Ex Rel. Shearer, 278 S.W.3d 6 (Tex. App. 2009). “42 C.F.R. § 51.2 . Under this broad definition, a criminal defendant who has been provided with a mental health screening or evaluation is considered to be receiving care or treatment in the State.”

Abington Mem'l Hosp. v. Burwell, 216 F. Supp. 3d 110 (D.D.C. 2016). “See 42 C.F.R. § 51.2 . Accordingly, with exceptions not relevant here, hospitals receive PPS payments based on the wage index in effect during the federal fiscal year when the inpatient discharge for which the hospital seeks reimbursement occurred.”

Sonnenberg v. Disability Rights Idaho, Inc., 168 F. Supp. 3d 1282 (D. Idaho 2016). “42 C.F.R. § 51.2 . . The Court will, however, grant DRI’s request that Ada County be dismissed from this case pursuant to Federal Rule of Civil Procedure 12(c) and 17(a) because it is not a real party in interest.”

Disability Rights Wisconsin, Inc. v. State Of Wisconsin Dep't Of Pub. Instruction, 463 F.3d 719 (7th Cir. 2006). “" 42 C.F.R. 51.2 (emphasis added). 5 Although DRW could, for example, contact every guardian at Lincoln and inform them of the potential problems, such a requirement would be onerous and not always effective.”

Indiana Prot. & Advocacy Servs. Comm'n v. Comm'r, Indiana Dep't of Corr., 642 F. Supp. 2d 872 (S.D. Ind. 2009). “§§ 10802 (3), (4); 42 C.F.R. § 51.2 . In other words, under federal law, protection and advocacy services must have the ability to bring lawsuits on behalf of mentally ill prisoners.”

Michigan Prot. & Advocacy Serv., Inc. v. Flint Cmty. Schs., 146 F. Supp. 3d 897 (E.D. Mich. 2015). “” 42 C.F.R. § 51.2 . *902 Regulations enacted under the authority of the.”

Disability Rights Wisconsin, Inc. v. Wisconsin Dep't of Pub. Instruction, 463 F.3d 719 (7th Cir. 2006). · cites it 2× “19 ; 42 C.F.R. § 51.2 . 4 The statutes further authorize the P&A agencies to pursue administrative, legal and other appropriate remedies to ensure the protection of individuals with disabilities or mental illness in the state.”

State of Connecticut Off. of Prot. & Advocacy for Persons with Disabilities v. Hartford Bd. of Educ., 464 F.3d 229 (2d Cir. 2006). · cites it 4× “” 42 C.F.R. § 51.2 . Defendants contend that this definition is reasonable because, unlike residential facilities such as hospitals or jails, day facilities like the Academy do not isolate students from their families or the community such that they would require the services of…”

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