 ’ OFFICE OF THE ATTORNEY GENERAL . STATE OF TEXAS

   JOHN   CORNYN




                                          February 8,2002



Ms. Karen F. Hale                                    Opinion No. JC-0461
Commissioner
Texas Department of Mental Health and                Re: Whether a federally-funded state protective
 Mental Retardation                                  and advocacy system for persons with mental
P. 0. Box 12668                                      illness or developmental   disabilities may have
Austin, Texas 7871 l-2668                            access to a person and his or her records over the
                                                     objection ofthe person’s guardian (RQ-0427-JC)


Dear Commissioner    Hale:

          The federal government provides funding to states that establish a system to protect and
advocate for the rights of persons with mental illness and developmental disabilities. See 42 U.S.C.
8 8 10801- 1085 1 (1994 & Supp. V 1999) (the Protection and Advocacy for Mentally Ill Individuals
Act, or “PAM11 Act”); id. $4 15041- 15045 (the Developmental Disabilities Assistance and Bill of
Rights Act, or “DD Act”). In exchange for federal funding, the state protection and advocacy system
(“P&A system”) must comply with federal law. Among the requirements of federal law is that a
P&A system have access to persons with mental illness or developmental disabilities, and to their         .
records, in order to provide information, investigate complaints, and perform other functions
specified by law. The terms and conditions of such access are laid out in detail in federal statutes
and regulations. You ask whether a P&A system may have access to a person with a mental illness
or developmental disability, and the person’s records, when the person’s legal guardian objects to
such access. We conclude, based on the plain language of federal statues and regulations, on the
underlying purpose of the PAM11 and DD Acts and regulations, and on court interpretations of the
Acts, that a P&A system may have access to a person with a mental illness or developmental
disability, and to the person’s records, under the circumstances and according to the procedures
prescribed by law, even if the legal guardian of the person objects to such access.

         The PAM11 Act and the DD Act were enacted by Congress in order to address what it found
to be deplorable conditions in public and private facilities housing persons with mental illness and
developmental disabilities. See 42 U.S.C. § 10801 (1994); Ala. Disabilities Advocacy Program v.
Tarwater Dev. Ctr., 97 F.3d 492,494-95 (11 th Cir. 1996); Robbins v. Budke, 739 F. Supp. 1479,
 148 1 (D. N.M. 1990). An essential part of the Acts was the creation of federally-funded state P&A
systems, whose mission is to ensure that this vulnerable population of individuals is not abused or
neglected. “The mentally ill are vulnerable to abuse and neglect because mentally ill individuals
have difficulty recognizing the concept that they have rights and will not necessarily identify even
the most egregious abuse as a violation of their rights.” Robbins, 739 F. Supp. at 1486. They are
Ms. Karen F. Hale - Page 2                             (JC-0461)




often unlikely to report abuses committed by the people who have daily control over their lives in
a facility, and even the most vigilant parents or guardians may not uncover wrongdoing during their
visits. See Tarwater, 97 F.3d at 498 n.3. Thus, “Congress legislated the Act to protect disabled
people who are unable to protect themselves.” Id. (discussing the DD Act).

          In Texas, the designated state P&A system is Advocacy, Incorporated (“Advocacy, Inc.“).’
You tell us that the guardians of a number of patients with mental illness or developmental
disabilities who reside in facilities operated by the Texas Department of Mental Health and Mental
Retardation (“TDMHMR”) have asked the department to deny Advocacy, Inc. access to the patients
and their records. “The guardians contend that they have the ultimate authority to decide whether
or not their ward is to be contacted by personnel from Advocacy, Inc., and whether or not the ward’s
records are to be reviewed.“* Advocacy, Inc., conversely, argues that federal laws and regulations
allow P&A systems to have access to patients and their records, under certain circumstances,
irrespective of guardian consent. In light of these conflicting views, you ask the following three
questions:

                  1. May Texas’ P&A system, Advocacy, Inc., have access to
                  individuals (both persons with mental illness and persons with mental
                  retardation/developmental     disabilities)  receiving   services   in
                  TDMHMR facilities when these same individuals’ guardians have
                  specifically refused to allow such access?

                  2. May Advocacy, Inc., access the records of an individual (both
                  persons      with   mental  illness      and persons   with   mental
                  retardation/developmental     disabilities) under either 42 USCA
                  8 1OSOS(a)(4)(C)(i-iii) or 42 USCA 5 15043(a)(2)(I)(iii)(I-V) when
                  that person’s guardian has specifically refused to allow access after
                  being offered assistance by the P&A system, as described in each
                  statute?

                  3. Does the P&A system authorize different levels of access to
                  individuals and records (over the objections of guardians) for each of




           ‘Under both the DD Act regulations and the PAM11 Act regulations, a state P&A system is designated by the
governor or state legislature. See 42 C.F.R. 6 5 1.5(a) (2000); id. $8 1386.19, .20. Advocacy, Inc. was designated by
Governor Dolph Briscoe to serve as the state’s P&A system. See Tex. Gov. Exec. Order No. DB-33,2 Tex. Reg. 3713
(1977). We also note that state law authorizes the Texas Department of Protective and Regulatory Services to
investigate a report of abuse, neglect, or exploitation of a child receiving services in a facility operated by or under
contract with the TDMHMR. See TEX. FAM. CODE ANN. $261.404 (Vernon Supp. 2002).

         *Letter to Honorable John Comyn, Texas Attorney General, from Ms. Karen F. Hale, Commissioner,     Texas
Department of Mental Health and Mental Retardation (Aug. 30,200l) ( on f 11e with Opinion Committee) [hereinafter
Request Letter].
Ms. Karen F. Hale - Page 3                       (JC-0461)




                the various functions the P&A is authorized to perform, for example,
                investigating alleged abuse/neglect or overseeing facilities?

Request Letter, supra note 2, at 2-3.

          We conclude, based on the plain language of federal statutes and regulations, on the
underlying purpose of the PAM11 and DD Acts and regulations, and on court interpretations of the
Acts, that a P&A system may have access to a person with a mental illness or developmental
disability, and to the person’s records, under the circumstances and according to the procedures
prescribed by law, even if the legal guardian of the person objects to such access. Although Texas
law grants legal guardians the right of care, control, and protection of their wards, see TEX. PROB.
CODE ANN. 9 767 (Vernon Supp. 2002), the Supremacy Clause of the United States Constitution
requires inconsistent state laws to yield to valid federal laws and regulations. See U.S. CONST. art.
VI, cl. 2; Fidelity Fed. Sav. & Loan Ass ‘n v. de la Cuesta, 458 U.S. 141,152 (1982); Seiter v. Veytia,
756 S.W.2d 303 (Tex. 1988). And while a patient’s legal guardian retains an important and
respected role under the federal Acts, and is entitled in some cases to notice of a request for access
and to withhold consent to certain actions of a P&A system, the overriding intent of the statutes is
to allow P&A systems reasonable, unrestricted access to patients and their records in order to fulfill
the purposes of the Acts.

        We will address your first two questions in the following two sections of this opinion. Your
third question will be addressed within those two sections as it relates to each of the questions.

                                          Access to Individuals

        In order for a state to receive federal funds   under the PAM11 Act, the state must have in effect
a system to protect and advocate for the rights          of individuals with mental illness. The statute
provides that a P&A system shall “have access to        facilities in the State providing care or treatment.”
42 U.S.C. 5 10805(a)(3) (1994). The regulations          provide further details on access to patients:

                     (b) A P&A system shall have reasonable unaccompanied access
                to public andprivatefacilities  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:
Ms. Karen F. Hale - Page 4                  (JC-0461)




                 (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 areas 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 [e]very
Ms. Karen F. Hale - Page 5                    (JC-0461)




               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. 5 1.41(b)(3).

42 C.F.R. 5 5 1.42(b)-(e) (2000) (emphasis added). Thus, under the PAM11 Act and regulations, a
P&A system may have reasonable, unaccompanied          access to a facility and its residents (1) to
conduct investigations of abuse or neglect when a complaint has been made, when there is probable
cause to believe that an incident may have occurred, or when a resident is in imminent danger of
serious abuse or neglect; (2) to provide information and training; (3) to monitor compliance with
rights and safety laws; and (4) to inspect, view, and photograph all areas used by or accessible to
residents.

          The DD Act and corresponding regulations require substantially the same right of access to
developmentally disabled individuals as a condition of federal funding. See 42 U.S.C. 8 15043(a)( 1)
(Supp. V 1999). A state P&A system must have the authority to investigate incidents of abuse and
neglect, provide information to patients, and pursue legal, administrative, and other appropriate
remedies to ensure the well-being of patients. See id. 5 15043(a)(2)(A)-(B).        Included in this
authority is the power to “have access at reasonable times to any individual with a developmental
disability in a location in which services, supports, and other assistance are provided to such an
individual, in order to carry out the purpose of [section 150433.” Id. 8 15043(a)(2)(H).

       Regulations adopted by the United States Department of Health and Human Services set out
in more detail the circumstances under which a P&A system may have access to a person with
developmental disabilities:

                    (f) Access to Facilities and Individuals with Developmental
               Disabilities-A    system shall have reasonable unaccompanied access
               to public andprivate facilities which provide services, supports, and
               other assistance for individuals with developmental disabilities in the
               State when necessary to conduct a full investigation of an incident of
               abuse or neglect under section 142(a)(2)(B) of the Act. This
               authority shall include the opportunity: to interview any facility
               service recipient, employee, or other person, 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; and to inspect, view and photograph all areas of the
               facility’s premises that might be reasonably believed by the system
               to have been connected with the incident under investigation.
Ms. Karen F. Hale - Page 6                      (Jc-0461)




                     (g) Under section 142(a)(2)(H) of the Act, the system and all of
                its authorized agents shall have unaccompanied access to all
                residents of a facility at reasonable times, which at a minimum shall
                include normal working hours and visiting hours, for the purpose of:

                     (1) Providing information and training on, and referral to,
                programs addressing the needs of individuals with developmental
                disabilities, and the protection and advocacy services available from
                the system, including the name, address, and telephone number of the
                system and other information and training about individual rights;
                and

                    (2) Monitoring compliance with respect to the rights and safety
                of service recipients.

                    (h) Unaccompanied access to residents of a facility shall include
                the opportunity to meet and communicate privately with such
                individuals regularly, both formally and informally, by telephone,
                mail and in person.

45 C.F.R. 9 1386.22(&(h) (2000) ( em ph asis added). Thus, under DD Act regulations, a P&A
system may have unaccompanied access to residents of a facility to conduct investigations of abuse
or neglect, provide information and training, and monitor compliance with rights and safety laws.

         In our view, the mental illness and developmental disabilities statutes and regulations clearly
allow a P&A system to have access to an individual, under the circumstances and according to the
procedures set out in the statutes and regulations, irrespective of the consent of the individual’s legal
guardian. Nothing in the statutes or regulations requires guardian consent to access, and we do not
believe that they imply any such requirement. The PAM11 Act regulations expressly provide that
the right of unaccompanied      access by a P&A system includes access to individuals with legal
guardians, see 42 C.F.R. 5 5 1.42(d) (2000), and applies despite the existence of any state or local
law restricting access to minors and adults with legal guardians, see id. 5 5 1.42(e). And the DD Act
regulations provide that the right to unaccompanied access includes the right to meet privately with
disabled persons. See 45 C.F.R. 8 1386.22(h) (2000).

         Courts are also of the view that guardian consent to access is not required. In Mississippi
Protection & Advocacy System, Inc. v. Cotten, 929 F.2d 1054 (5th Cir. 1991), the United States
Court of Appeals for the Fifth Circuit considered the legality of a state mental institution’s
regulations limiting a P&A system’s access to residents. The state’s regulations severely restricted
the circumstances under which the P&A system could meet with patients and included a requirement
that a patient’s guardian consent to access. The court upheld an injunction on the state’s practices:
Ms. Karen F. Hale - Page 7                       (JC-0461)




                The mandatory provisions of section 6042 [now section 150431
                relating to authority to investigate incidents of abuse and neglect are
                rendered nugatory by the Center’s restrictions on MP & A. Similarly,
                MP & A is prevented from performing its statutory duty of
                establishing a grievance procedure for clients or prospective clients.
                The regulations are such that MP & A has virtually no access to
                clients not retained prior to the change in the regulations.      Most
                importantly, the Center’s regulations render the state’s requirement
                to “have in effect a system to protect and advocate the rights of
                persons with developmental disabilities” comatose if not moribund.
                The trial court did not err in finding a violation of the Act.

Cotten, 929 F.2d at 1059 (citations omitted); see also Mich. Prot. & Advocacy Serv., Inc. v. Miller,
849 F. Supp. 1202,1207-08 (W.D. Mich. 1994).

         And in Iowa Protection & Advocacy Services, Inc. v. Gerard Treatment Programs, L.L.C.,
152 F. Supp. 2d 1150 (N.D. Iowa 2001), the court rejected the argument that parents, guardians, or
legal representatives of a patient must be present at and have the right to terminate any interview by
the P&A system. The court pointed out that nothing in the PAM11 Act regulations gives a guardian
the right to be present at or terminate an interview. In fact, the court said, the regulations specifically
provide for “unaccompanied         access” and the right to “meet and communicate privately” with
patients, including patients “who have legal guardians or conservators.” Iowa Prot. & Advocacy
Sews., 152 F. Supp. 2d at 1168-71 (citing 42 C.F.R. 8 51.42).

        Accordingly, we conclude that a P&A system may have access to a person with a mental
illness or a developmental disability residing in a care facility irrespective of guardian consent. In
order for a state to receive federal funds pursuant to the PAM11 and DD Acts, it must ensure that the
state P&A system has access to these individuals to the extent allowed and required by federal law.

                                           Access to Records

         Both the PAM11 Act and the DD Act set out in detail a P&A system’s right of access to
patient records as a condition of a state’s receipt of federal funds. The PAM11 Act provides as
follows:

                5 10805. System requirements

                     (a) A system established in a State under section 10803 of this
                title to protect and advocate the rights of individuals with mental
                illness shall-
Ms. Karen F. Hale - Page 8                     (JC-0461)




                     (4) in accordance with section 10806 of this title, have access to
                all records of-

                    (A) any individual who is a client of the system if such
                individual, or the legal guardian, conservator, or other legal
                representative of such individual, has authorized the system to have
                such access;

                   (B) any individual (including an individual       who has died or
                whose whereabouts are unknown)---

                    0i    who by reason of the mental or physical condition of such
                individual is unable to authorize the system to have such access;

                    (ii) who does not have a legal guardian, conservator, or other
                legal representative, or for whom the legal guardian is the State; and

                     (iii) with respect to whom a complaint has been received by the
                system or with respect to whom as a result of monitoring or other
                activities (either of which result from a complaint or other evidence)
                there is probable cause to believe that such individual has been
                subject to abuse or neglect; and

                   (C) any individual with a mental illness, who has a legal
               guardian, conservator, or other legal representative, with respect to
               whom a complaint has been received by the system or with respect to
               whom there is probable cause to believe the health or safety of the
               individual is in serious and immediate jeopardy, whenever-

                    0i    such representative has been contacted by such system upon
                receipt of the name and address of such representative;


                    (ii ) such system has offered assistance to such representative to
                resolve the situation; and

                    (iii) such representative has failed or refused to act on behalf of
                the individual;




42 U.S.C. 5 10805 (1994) (emphasis added). Thus, with respect to a patient who has a legal
guardian, a P&A system may have access to all records of the patient when (1) the legal guardian
consents to access, see id. 6 10805(a)(4)(A), or (2) a complaint has been received or there is probable
Ms. Karen F. Hale - Page 9                     (JC-0461)




cause to believe that the patient’s health or safety is in serious and immediate jeopardy, provided the
guardian has been contacted, the P&A system has offered assistance to the guardian, and the
guardian has failed or refused to act on behalf of the patient, see id. 8 10805(a)(4)(C). Under Texas
law, “[nlotwithstanding   other state law, the protection and advocacy system established in this state
under the federal Protection and Advocacy for Mentally Ill Individuals Act of 1986 (42 U.S.C. Sec.
10801-1085 1) is entitled to access to records relating to persons with mental illness to the extent
authorized by federal law.” TEX. HEALTH & SAFETY CODE ANN. 5 615.002(a) (Vernon 1992).

        The DD Act and corresponding      regulations   are substantially   similar:

                (a) System required

                    In order for a State to receive an allotment under part B of this
                subchapter or this part-

                    (1) the state shall have in effect a system to protect and
                advocate the rights of individuals with developmental disabilities;

                    (2)   such system shall-




                   (1)    have access to all records of-


                    0i   any individual with a developmental disability who is a
               client of the system if such individual, or the legal guardian,
               conservator, or other legal representative of such individual, has
               authorized the system to have such access;

                   (ii) any individual with a developmental       disability, in a situation
               in which-

                   (1) the individual, by reason of such individual’s mental or
               physical condition, is unable to authorize the system to have such
               access;

                   (II) the individual does not have a legal guardian, conservator,
               or other legal representative, or the legal guardian of the individual is
               the State; and

                   (III)a complaint has been received by the system about the
               individual with regard to the status or treatment of the individual or,
               as a result of monitoring or other activities, there is probable cause
Ms. Karen F. Hale - Page 10                   (JC-0461)




               to believe that such individual has been subject to abuse or neglect;
               and

                   (iii) any individual with a developmental   disability, in a situation
               in which-

                   (1) the individual    has a legal guardian, conservator,     or other
               legal representative;

                    (II) a complaint has been received by the system about the
               individual with regard to the status or treatment of the individual or,
               as a result of monitoring or other activities, there is probable cause
               to believe that such individual has been subject to abuse or neglect;

                   (III) such representative has been contacted by such system,
               upon receipt of the name and address of such representative;

                    (IV) such system has offered assistance to such representative to
               resolve the situation; and

                   (V) such representative    has failed or refused to act on behalf of
               the individual; . . . .

42 U.S.C. § 15043 (Supp. V 1999) (emphasis added); see also 42 C.F.R. 8 51.41(a)-(b) (2000)
(restating the Act). Thus, under the DD Act, a P&A system may access the records of a patient with
a legal guardian when (1) the legal guardian consents to access, see 42 U.S.C. 0 15043(a)(2)(I)(i)
(Supp. V 1999), or (2) a complaint has been received or there is probable cause to believe that the
patient has been subject to abuse or neglect, and the guardian has been contacted, the P&A system
has offered assistance to the guardian, and the representative has failed or refused to act on behalf
of the individual, see id. 8 15043(a)(2)(I)(iii). Under Texas law, the state’s P&A system must have
access to a patient’s records to the extent allowed and required by federal disability laws. See TEX.
HUM. RES. CODE ANN. 8 112.021 (Vernon 2001).

         Courts have considered the question ofwhether a legal guardian’s refusal to consent to access
constitutes a failure or refusal to act, which would allow access to records by the P&A system. See
Iowa Prot. & Advocacy Sews., 152 F. Supp. 2d 1150; Disability Law Ctr., Inc. v. Riel, 130 F. Supp.
2d 294 (D. Mass. 2001). It was argued by guardians in those cases that the phrase “failed to or
refused to act on behalf of the individual” is intended to address only those situations where the
guardian fails to act at all, not where the guardian proactively investigates the incident and decides
in good faith to deny access to the patient’s records. The courts have not been persuaded by that
argument:
Ms. Karen F. Hale - Page 11                     (JC-0461)




                         The “plain meaning” of 8 10805(a)(4) is that it grants the P &
                A what might be described as “overriding” authority to obtain access
                to patients and their records, notwithstanding a guardian’s “refusal
                or failure to act on behalf of the individual” upon the request of the
                P & A for permission for such access. . . . . Looking at the statutory
                context of this language, . . . the purpose of access by a P & A to
                records and patients is precisely for the purpose of “acting on behalf
                of the individual” residents of facilities by investigating actual or
                potential abuse or neglect. . . . . Thus, the guardian’s “fail[ure] or
                refus[al] to act on behalf of the individual,” in the context of the
                statute, includes the guardian’s failure to consent to access by the P
                & A.

                         Moreover, such a reading of the statute is in keeping with the
                “‘object and policy”’ of the PAM11 Act, . . . and would best
                “effectuate the intent reflected in the language of the enactment and
                the legislative process.”

Iowa Prot. & Advocacy Sews., 152 F. Supp. 2d at 1165 (citations omitted); see also Riel, 130’F.
Supp. 2d at 297-301. A federal court in Texas, while not deciding the issue, recently recognized the
holding of Iowa Protection & Advocacy Services in determining whether Advocacy, Inc. had the
right to access a deceased patient’s records:

                Even if there were a legal guardian applicable to the present action,
                the advocacy agency’s statutory mandate to investigate abuse and
                neglect may trump any objections that the legal guardian has
                concerning      access to the pertinent records.       Recognizing     the
                importance of having an advocacy group to protect the rights of
                institutionalized pat[i]ents, at least one court has held that even if the
                patient’s guardian has told the advocacy agency or the institution that
                they do not want the advocacy agency to have access to the patient’s
                records, the advocacy agency still has a right of access to the patient’s
                records. See Iowa Prot. & Advocacy Svcs., Inc. v. Gerard Treatment
                Programs L.L.C.,152 F. Supp. 2d 1150,1162-63 (N.D. Iowa 2001).

AdvocacyInc.   v. Tarrant County Hosp. Dist., 2001 WL 1297688 *3 n.5 (ND. Tex 2001) (mem. op).

         Courts have recognized that under the PAM11 Act and DD Act, legal guardians retain an
important role in protecting the interests ofpersons with mental illness or developmental disabilities.
See Tarwater, 97 F.3d at 497-98; Riel, 130 F. Supp. 2d at 299-300. The PAM11 Act recognizes that
“family members of individuals with mental illness play a crucial role in being advocates for the
rights of individuals with mental illness where the individuals are minors, the individuals are legally
competent and choose to involve the family members, and the individuals are legally incompetent
Ms. Karen F. Hale - Page     12               (JC-0461)




and the legal guardians, conservators, or other legal representatives are members of the family.” 42
U.S.C. 5 10801(a)(2) (1994 & Supp. V 1999).               “Legal guardian, conservator, and legal
representative” are defined as someone “having authority to make all decisions on behalf of
individuals with developmental disabilities.” 45 C.F.R. 8 1386.19 (2000). Under the regulations
of both Acts, when a complaint has been received or that there is probable cause to believe the
patient’s health or safety is in jeopardy, a P&A system must make a good faith effort to contact a
legal guardian and offer assistance to the guardian before accessing a patient’s records. See 42
C.F.R. 8 5 1.41(b)(3) (2000); 45 C.F.R. 9 1386.22(a)(3) (2000). And under the PAM11 regulations,
a P&A system may not take formal action on behalf of any individual or initiate a formal
relationship with the individual, except in emergency situations, without the consent of the
individual’s guardian. See 42 C.F.R. 8 5 1.42(e) (2000).

          However, courts have found that P&A systems have an “overriding” authority to access
patients and their records. See, e.g., Iowa Prot. & Advocacy Sews., 152 F. Supp. 2d at 1165.
Guardians retain their authority to make decisions about their wards, but are not the sole decision-
makers under the Acts. See Riel, 130 F. Supp. 2d at 299. Courts have found that the Acts’
legislative history shows that Congress intended to let the obligations of the P&A systems “trump”
the guardian’s wishes under the circumstances outlined in the statutes and regulations. See id. at
300. “It is clear that the Act provides express authority for P & As to gain broad access to records,
facilities, and residents to ensure that the Act’s mandates can be effectively pursued.” Tarwater, 97
F.3d at 497.

         Accordingly, based on the plain language of federal statutes and regulations, on the
underlying purpose of the PAM11 and DD Acts and regulations, and on court interpretations of these
laws, P&A systems may have access to individuals with mental illness or developmental disabilities,
and their records, under the prescribed circumstances and procedures, irrespective of guardian
consent.
Ms. Karen F. Hale - Page 13                  (JC-0461)




                                       SUMMARY

                       Federally-funded  state protection and advocacy systems for
               persons with mental illness or developmental         disabilities are
               authorized, in accordance with federal law, to have access to such
               persons and their records under certain circumstances           and in
               accordance with the procedures prescribed by federal law, even if the
               person’s legal guardian objects to such access.




                                              Attorney General of Texas



HOWARD G. BALDWIN, JR.
First Assistant Attorney General

NANCY FULLER
Deputy Attorney General - General Counsel

SUSAN DENMON GUSKY
Chair, Opinion Committee

Barbara Griffin
Assistant Attorney General
