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PAIMI Program atPAIMI Program atThe Legal CenterThe Legal Center

Contact information:

455 Sherman Street, Suite 130Denver, CO 80203-4403

303-722-0300303-722-3619 TTY303-722-0720 FAX

Toll Free 1-800-288-1376tlcmail@thelegalcenter.org

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PAITBI CAP PAVA

PAAT

PAIMI

The Legal Center for People with

Disabilities and Older People

PAIR

Older Americans Program

PABSS

PADD

Protection and Advocacy for Individuals with

Traumatic Brain Injury

Protection and Advocacy for Assistive

Technology

Protection and Advocacy for Individuals with

Mental Illness

Client Assistance Program

Protection and Advocacy for Individual Rights

*Housing and Employment Rights

*HIV Legal Rights Network

*Long Term Care Ombudsman Program

*Legal Assistance Developer Program

Protection and Advocacy for Voting

Access

Protection and Advocacy for Beneficiaries of

Social Security

Protection and Advocacy for Developmental

Disabilities*Special Education

Program*Adult DD Program

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The Legal Center’s MissionThe Legal Center’s Mission

To protect and promote the rights of people with disabilities through direct legal representation, advocacy, education and legislative analysis.

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PAIMI HistoryPAIMI History

• The federal government enacted The Protection and Advocacy for Individuals with Mental Illness Act (PAIMI) in 1986.

• 42 U.S.C. 10801, et seq.; 42 C.F.R. Part 51, et seq.

• In order for states to receive federal mental health block grant monies, states must have a protection and advocacy system.

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Congressional Findings

• Congress finds that - individuals with mental illness are vulnerable to abuse and serious injury, and

• Individuals with mental illness are subject to neglect, including lack of treatment, adequate nutrition, clothing, health care, and adequate discharge planning.

42 U.S.C. 10801(a)

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Congressional PurposeCongressional PurposeThe purposes of this Act are:

1) To ensure that the rights of individuals with mental illness are protected; and

2) To assist states to establish and operate a protection and advocacy system for individuals with mental illness which will:

A) protect and advance the rights of such individuals through

activities to ensure the enforcement of the Constitution and Federal and State statutes; and

B) investigate incidents of abuse and neglect of individuals with mental illness if the incidents are reported to the system or if there is probable cause to believe that the incidents occurred.

42 U.S.C. 10801(b)

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Abuse

• 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”

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Examples of Abuse

• Rape/sexual assault

• Striking

• Using excessive force during restraints

• Using bodily or chemical restraints contrary to state or federal law

• Verbal harassment

• Any act that is likely to cause immediate physical or psychological harm

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Neglect

• Neglect means “a negligent act or omission by any 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”

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Examples of Neglect #1

• Failure to supply adequate nutrition, clothing or health care

• Failure to provide a safe environment

• Failure to provide adequate numbers of appropriately trained staff

Examples of Neglect #2

• Failure to establish or carry out an appropriate individual treatment or discharge plan

• Failure to provide special education services for children with disabilities while in residential facilities.

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PAIMI Authority #1

– The Protection and Advocacy System has the authority to:

– Investigate incidents of abuse, neglect, and civil rights violations of individuals with mental illness if the incidents are reported to the system or if there is probable cause to believe that the incidents occurred

42 U.S.C. 10805(a)(1)(A)

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PAIMI Authority #2

– The Protection and Advocacy System has the authority to:

– Pursue administrative, legal, and other appropriate remedies to ensure the protection of individuals with mental illness who are receiving care or treatment in the State of Colorado

42 U.S.C. 10801(a)(1)(B)

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PAIMI Authority – Records Access #1

• Have access to all records of 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

42 U.S.C. 10805(a)(4)(A)

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PAIMI Authority – Records Access #2

• Any individual (including someone who has died or who’s whereabouts are unknown)

• Unable to authorize access because of mental or physical condition

• No guardian, conservator, or other legal representative or the legal guardian is the state

• A complaint has been received, or through monitoring or other activities there is probable cause to believe that abuse or neglect occurred

42 U.S.C. 10805(a)(4)(B)

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PAIMI Authority – Records Access #3

• An individual who has a guardian, conservator, or other legal representative

• Probable cause to believe the individual is in serious and immediate jeopardy, whenever

• The representative is contacted and • The P&A offers assistance and • The representative fails to act on behalf of the

individual

42 U.S.C. 10805(a)(4)(C)

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Records

• “Records” 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 facility and discharge planning records.

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Preemption #1

• CLA v. Hammons, 323 F.3d 1262 (10th Cir. 2003)

• Under the Supremacy Clause the PAIMI Act preempts state laws to the contrary

• Examples• Quality Management/Assurance records, CRS

25-3-109(4)

• Peer Review records, CRS 12-36.5-104(10)(a)

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Preemption #2

• The Colorado Children’s Code and Human Services

• CRS 19-1-307(1)(a) Dependency and Neglect and Child Abuse records

• CRS 19-1-303(1)(b) Delinquency and Dependency and Neglect records

• CRS 19-3-313.5(4) Confidentiality, Reports of child abuse and neglect

• CRS 26-1-114 Human Services Records -Confidential

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PAIMI’s Confidentiality Duty

Records obtained under PAIMI authority which are confidential under Federal or State law are required to be maintained in a confidential manner by the P&A System to the same extent as the provider of mental health services.

42 U.S.C. 10806(a)

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PAIMI Authority – Facilities Access

• Has access to facilities in the State providing care or treatment– Facility includes any public or private residential

setting that provides overnight care accompanied by treatment services

– Examples of facilities hospitals, nursing homes, residential child care facilities, jails and prisons

42 U.S.C. 10805(a)(3)

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PAIMI Authority – Access to Individuals

• 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

– Who is an inpatient or resident in a facility rendering care or treatment, even if the whereabouts of such inpatient or resident is unknown

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

– Who is involuntarily confined in a detention facility, jail or prison

42 C.F.R. 51.42

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Contacts at PAIMI TeamContacts at PAIMI Team

Mark J. Ivandick, Managing AttorneyMark J. Ivandick, Managing Attorney

Jennifer L. Purrington, AttorneyJennifer L. Purrington, Attorney

Patricia Doyle, Senior Rights Advocate and InvestigatorPatricia Doyle, Senior Rights Advocate and Investigator

Chaz Gilmore, Intake SpecialistChaz Gilmore, Intake Specialist

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The Legal Center For People With Disabilities and Older People

455 Sherman Street, Suite 130 Denver, CO 80203-4403 303-722-0300 303-722-3619 TTY 303-722-0720 FAX Toll Free 1-800-288-1376 tlcmail@thelegalcenter.org