Program Instructions ADD PI-90-2
ADD-PI-90-2
Issued 11/8/90
TO: |
Directors, State Protection and Advocacy Systems |
SUBJECT: |
Access by the Department or other Authorized Federal Officials to client Records or Other Records of the Protection and Advocacy Systems (P&AS) |
LEGAL AND RELATED REFERENCES:
Developmental Disabilities Assistance and Bill of Rights Act,
as amended, 42 USC 6000, et. seq.
45 CFR Part 1386 amended November 20, 1989 (54 FR 47982)
45 CFR Parts 74.24 (nongovernments) and 92.42(e) (governments)
CONTENT:
This instruction provides guidance to States on the requirements for the
P&As to allow authorized representatives of the Department of Health
and Human Services or other authorized Federal officials access to client
records or other records of the P&AS. Section 104 of the Developmental
Disabilities Assistance and Bill of Rights Act (the Act) requires that each
recipient of assistance under this title (which includes the P&As),
shall keep such records as the Secretary shall prescribe. It further requires
that duly authorized representatives of the Secretary of Health and Human
Services and the Comptroller General of the United States shall have access
for the purpose of audit and examination to any books, documents, papers,
and the records of the recipients of assistance under this title that are
pertinent to such assistance. The final rule, Part 1386, Section 1386.21(b)(1)
prescribes: The client's record is the property of the P&As which must
protect it from loss, damage, tampering, or use by unauthorized individuals.
The P&As must: (1) keep confidential all information contained in a
client's records including information contained in an automated data bank;
this requirement in no way limits or restricts access by the Department
or other authorized Federal officials to the client's records or other records
of the protection and advocacy system for purposes of carrying out the responsibilities
of their offices. It also does not limit access by parents or legal guardians
of minors unless prohibited by State law, court order or the rules of attorney-client
privilege.
INSTRUCTION:
States and P&A grantees are advised that in order to be in compliance
with the Act, P&A client records and other program records must be made
available to authorized Federal representatives who are performing the monitoring
responsibilities of the Administration on Developmental Disabilities. These
responsibilities include conducting Program Administrative Reviews (PARs).
While performing PARS, Federal officials are subject to the same requirements
as the P&As regarding the protection of client's records from loss,
damage, tampering, use by unauthorized individuals and confidentiality of
information contained in these records.
/signature/
Deborth L. McFadden
Commissioner Administration on Developmental Disabilities
EFFECTIVE DATE: Date of Issuance
INQUIRIES TO: Regional Administrators, HDS
ADD-PI-90-2