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A Primer on PAMII
Congress has enacted several federal statutes to protect and advance the interests of those with mental illness or developmental disabilities, and of other mentally handicapped persons who do not meet the statutory criteria for being either mentally ill or developmentally disabled. These statutes were enacted partly in response to concerns about the mistreatment of the mentally handicapped in institutions, including both public and private hospitals, nursing homes, and correctional facilities. Not surprisingly, therefore, the agencies constituted to enforce these laws have been granted broad powers to monitor and investigate conditions in facilities that provide treatment and care for the mentally handicapped. In recent years, there has been significant litigation concerning the degree to which that investigatory authority includes a right of access to institutions' peer review and quality assurance records, which otherwise would be protected by state privilege statutes.
The Statutory Framework And History
Under the Protection and Advocacy for Mentally Ill Individuals Act (PAMII), 42 U.S.C. ' 1081 et seq., the Secretary of the Department of Health and Human Services makes allotments to “systems” designed to “protect and advocate the rights of individuals with mental illness.” Id. ' 10803. PAMII provides that these “Protection and Advocacy (P & A) Systems” “shall … have access to all records of” certain patients in hospitals and other health care facilities. Id. ' 10805(a)(4). This authority extends not only to the P & A Systems' “clients,” but in certain circumstances to non-clients with respect to whom complaints have been received, or with respect to whom there is probable cause to believe that abuse or neglect has occurred. Id. ' 10805(a)(4)(A) & (B). Courts have generally ruled, moreover, that the P & A Systems are the ultimate arbiters of whether probable cause exists. See Arizona Ctr. for Disability Law v. Allen, 197 F.R.D. 689, 693 (D. Ariz. 2000); Iowa Protection and Advocacy Services, Inc. v. Res-Care Premier, Inc., 2002 U.S. Dist. LEXIS 12942 (S.D. Iowa 2002). A system may even have access to the records of an incompetent individual whose guardian, conservator, or other representative objects, if there is a showing of “serious and immediate jeopardy” to the mentally ill person and the guardian, conservator, or representative has failed or refused to act on his or her behalf. Id. ' 10805(a)(4)(C). P & A Systems are afforded similar access to records under the Developmental Disability Assistance and Bill of Rights Act, 42 U.S.C. ' 15043(a)(2)(I), and under the Protection and Advocacy of Individual Rights Act, 29 U.S.C. ' 794e(f)(2). (The term “records” is defined in PAMII to include reports prepared by any staff of a facility rendering care and treatment or reports prepared by an agency charged with investigating reports of incidents of abuse, neglect, and injury occurring at such facilities that describe incidents of abuse, neglect, and injury occurring at such facility and the steps taken to investigate such incidents, and discharge planning records.)
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