US (United States) Code. Title 42. Chapter 114: Protection and avocacy for mentally ill individuals

Codificación normativa de EEUU (Estados Unidos). Legislación federal estadounidense # The Public Health and Welfare

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-CITE-

42 USC CHAPTER 114 - PROTECTION AND ADVOCACY FOR MENTALLY

ILL INDIVIDUALS 01/06/03

-EXPCITE-

TITLE 42 - THE PUBLIC HEALTH AND WELFARE

CHAPTER 114 - PROTECTION AND ADVOCACY FOR MENTALLY ILL INDIVIDUALS

-HEAD-

CHAPTER 114 - PROTECTION AND ADVOCACY FOR MENTALLY ILL INDIVIDUALS

-MISC1-

SUBCHAPTER I - PROTECTION AND ADVOCACY SYSTEMS

PART A - ESTABLISHMENT OF SYSTEMS

Sec.

10801. Congressional findings and statement of purpose.

10802. Definitions.

10803. Allotments.

10804. Use of allotments.

(a) Contracts.

(b) Obligation of allotments; technical assistance

and training.

(c) Representation of individuals with mental

illness.

(d) Definition for purposes of representation of

individuals with mental illness; priority.

10805. System requirements.

(a) Authority; independent status; access to

facilities and records; advisory council;

annual report; grievance procedure.

(b) Annual survey report; plan of corrections.

(c) Governing authority.

10806. Access to records.

10807. Legal actions.

PART B - ADMINISTRATIVE PROVISIONS

10821. Applications.

(a) Submission for allotment; contents.

(b) Satisfaction of requirements regarding trained

staff.

(c) Duration of applications and assurances.

10822. Allotment formula and reallotments.

10823. Payments under allotments.

10824. Reports by Secretary.

10825. Technical assistance.

10826. Administration.

(a) In general.

(b) Regulations.

10827. Authorization of appropriations.

SUBCHAPTER II - RESTATEMENT OF BILL OF RIGHTS FOR MENTAL HEALTH

PATIENTS

10841. Restatement of bill of rights.

SUBCHAPTER III - CONSTRUCTION

10851. Construction of subchapters I and II; "individual with

mental illness" defined.

-SECREF-

CHAPTER REFERRED TO IN OTHER SECTIONS

This chapter is referred to in sections 290bb-31, 290ii-1,

290ii-2, 1396r, 3032i, 3058g, 14404, 15043 of this title; title 29

sections 794e, 3002.

-End-

-CITE-

42 USC SUBCHAPTER I - PROTECTION AND ADVOCACY SYSTEMS 01/06/03

-EXPCITE-

TITLE 42 - THE PUBLIC HEALTH AND WELFARE

CHAPTER 114 - PROTECTION AND ADVOCACY FOR MENTALLY ILL INDIVIDUALS

SUBCHAPTER I - PROTECTION AND ADVOCACY SYSTEMS

-HEAD-

SUBCHAPTER I - PROTECTION AND ADVOCACY SYSTEMS

-SECREF-

SUBCHAPTER REFERRED TO IN OTHER SECTIONS

This subchapter is referred to in sections 10841, 10851 of this

title.

-End-

-CITE-

42 USC Part A - Establishment of Systems 01/06/03

-EXPCITE-

TITLE 42 - THE PUBLIC HEALTH AND WELFARE

CHAPTER 114 - PROTECTION AND ADVOCACY FOR MENTALLY ILL INDIVIDUALS

SUBCHAPTER I - PROTECTION AND ADVOCACY SYSTEMS

Part A - Establishment of Systems

-HEAD-

PART A - ESTABLISHMENT OF SYSTEMS

-End-

-CITE-

42 USC Sec. 10801 01/06/03

-EXPCITE-

TITLE 42 - THE PUBLIC HEALTH AND WELFARE

CHAPTER 114 - PROTECTION AND ADVOCACY FOR MENTALLY ILL INDIVIDUALS

SUBCHAPTER I - PROTECTION AND ADVOCACY SYSTEMS

Part A - Establishment of Systems

-HEAD-

Sec. 10801. Congressional findings and statement of purpose

-STATUTE-

(a) The Congress finds that -

(1) individuals with mental illness are vulnerable to abuse and

serious injury;

(2) 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 and

the legal guardians, conservators, or other legal representatives

are members of the family;

(3) individuals with mental illness are subject to neglect,

including lack of treatment, adequate nutrition, clothing, health

care, and adequate discharge planning; and

(4) State systems for monitoring compliance with respect to the

rights of individuals with mental illness vary widely and are

frequently inadequate.

(b) The purposes of this chapter 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 advocate 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.

-SOURCE-

(Pub. L. 99-319, title I, Sec. 101, May 23, 1986, 100 Stat. 478;

Pub. L. 102-173, Secs. 3, 10(2), Nov. 27, 1991, 105 Stat. 1217,

1219.)

-REFTEXT-

REFERENCES IN TEXT

This chapter, referred to in subsec. (b), was in the original

"this Act", meaning Pub. L. 99-319, May 23, 1986, 100 Stat. 478,

which is classified principally to this chapter. For complete

classification of this Act to the Code, see Short Title note below

and Tables.

-MISC1-

AMENDMENTS

1991 - Subsec. (a). Pub. L. 102-173, Sec. 10(2), substituted

"individuals with mental illness" for "mentally ill individuals" in

three places.

Subsec. (a)(2) to (4). Pub. L. 102-173, Sec. 3, added par. (2)

and redesignated former pars. (2) and (3) as (3) and (4),

respectively.

Subsec. (b). Pub. L. 102-173, Sec. 10(2), substituted

"individuals with mental illness" for "mentally ill individuals" in

three places.

SHORT TITLE OF 1991 AMENDMENT

Section 1 of Pub. L. 102-173 provided that: "This Act [amending

this section and sections 10802 to 10807, 10821, 10824, 10826,

10827, 10841, and 10851 of this title] may be cited as the

'Protection and Advocacy for Mentally Ill Individuals Amendments

Act of 1991'."

SHORT TITLE OF 1988 AMENDMENT

Pub. L. 100-509, Sec. 1, Oct. 20, 1988, 102 Stat. 2543, provided

that: "This Act [amending sections 10802, 10804 to 10806, 10821,

10822, 10825, and 10827 of this title and enacting a provision set

out as a note under section 10827 of this title] may be cited as

the 'Protection and Advocacy for Mentally Ill Individuals

Amendments Act of 1988'."

SHORT TITLE

Pub. L. 99-319, Sec. 1, May 23, 1986, 100 Stat. 478, as amended

by Pub. L. 106-310, div. B, title XXXII, Sec. 3206(a), Oct. 17,

2000, 114 Stat. 1193, provided that: "This Act [enacting this

chapter and section 247a of this title and enacting provisions set

out as a note below] may be cited as the 'Protection and Advocacy

for Individuals with Mental Illness Act'."

SUPERSEDURE OF BALANCED BUDGET PROVISIONS

Section 402 of Pub. L. 99-319 provided that: "This Act [see Short

Title note above] shall not be construed as superseding any of the

balanced budget provisions set forth in section 3(7) of the

Congressional Budget and Impoundment Control Act of 1974 [2 U.S.C.

622(7)]."

-End-

-CITE-

42 USC Sec. 10802 01/06/03

-EXPCITE-

TITLE 42 - THE PUBLIC HEALTH AND WELFARE

CHAPTER 114 - PROTECTION AND ADVOCACY FOR MENTALLY ILL INDIVIDUALS

SUBCHAPTER I - PROTECTION AND ADVOCACY SYSTEMS

Part A - Establishment of Systems

-HEAD-

Sec. 10802. Definitions

-STATUTE-

For purposes of this subchapter:

(1) The term "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 a (!1) individual with mental illness,

and includes acts such as -

(A) the rape or sexual assault of a (!1) individual with

mental illness;

(B) the striking of a (!1) individual with mental illness;

(C) the use of excessive force when placing a (!1) individual

with mental illness in bodily restraints; and

(D) the use of bodily or chemical restraints on a (!1)

individual with mental illness which is not in compliance with

Federal and State laws and regulations.

(2) The term "eligible system" means the system established in

a State to protect and advocate the rights of persons with

developmental disabilities under subtitle C of the Developmental

Disabilities Assistance and Bill of Rights Act of 2000 [42 U.S.C.

15041 et seq.].

(3) The term "facilities" may include, but need not be limited

to, hospitals, nursing homes, community facilities for

individuals with mental illness, board and care homes, homeless

shelters, and jails and prisons.

(4) The term "individual with mental illness" means, except as

provided in section 10804(d) of this title, an individual -

(A) 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

(B)(i)(I) who is an inpatient or resident in a facility

rendering care or treatment, even if the whereabouts of such

inpatient or resident are unknown;

(II) who is in the process of being admitted to a facility

rendering care or treatment, including persons being

transported to such a facility; or"; (!2)

(III) who is involuntarily confined in a municipal detention

facility for reasons other than serving a sentence resulting

from conviction for a criminal offense; or

(ii) who satisfies the requirements of subparagraph (A) and

lives in a community setting, including their own home.

(5) The term "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 a (!1) individual with mental illness or which

placed a (!1) individual with mental illness at risk of injury or

death, and includes an act or omission such as the failure to

establish or carry out an appropriate individual program plan or

treatment plan for a (!1) individual with mental illness, the

failure to provide adequate nutrition, clothing, or health care

to a (!1) individual with mental illness, or the failure to

provide a safe environment for a (!1) individual with mental

illness, including the failure to maintain adequate numbers of

appropriately trained staff.

(6) The term "Secretary" means the Secretary of Health and

Human Services.

(7) The term "State" means each of the several States, the

District of Columbia, the Commonwealth of Puerto Rico, Guam, the

Commonwealth of the Northern Mariana Islands, American Samoa, the

Virgin Islands, and the Trust Territory of the Pacific Islands.

(8) The term "American Indian consortium" means a consortium

established under part C of the Developmental Disabilities

Assistance and Bill of Rights Act (!3) (42 U.S.C. 6042 et seq.).

-SOURCE-

(Pub. L. 99-319, title I, Sec. 102, May 23, 1986, 100 Stat. 478;

Pub. L. 100-509, Sec. 3, Oct. 20, 1988, 102 Stat. 2543; Pub. L.

102-173, Secs. 4, 10(1), Nov. 27, 1991, 105 Stat. 1217, 1219; Pub.

L. 106-310, div. B, title XXXII, Sec. 3206(b), Oct. 17, 2000, 114

Stat. 1194; Pub. L. 106-402, title IV, Sec. 401(b)(13)(A), Oct. 30,

2000, 114 Stat. 1739.)

-REFTEXT-

REFERENCES IN TEXT

The Developmental Disabilities Assistance and Bill of Rights Act

of 2000, referred to in par. (2), is Pub. L. 106-402, Oct. 30,

2000, 114 Stat. 1677. Subtitle C of the Act probably means subtitle

C of title I of the Act, which is classified generally to part C

(Sec. 15041 et seq.) of subchapter I of chapter 144 of this title.

For complete classification of this Act to the Code, see Short

Title note set out under section 15001 of this title and Tables.

The Developmental Disabilities Assistance and Bill of Rights Act,

referred to in par. (8), is title I of Pub. L. 88-164, as added by

Pub. L. 98-527, Sec. 2, Oct. 19, 1984, 98 Stat. 2662, as amended,

which was repealed by Pub. L. 106-402, title IV, Sec. 401(a), Oct.

30, 2000, 114 Stat. 1737. Part C of the Act was classified

generally to subchapter III (Sec. 6041 et seq.) of chapter 75 of

this title. For complete classification of this Act to the Code,

see Tables.

-MISC1-

AMENDMENTS

2000 - Par. (2). Pub. L. 106-402 substituted "subtitle C of the

Developmental Disabilities Assistance and Bill of Rights Act of

2000" for "part C of the Developmental Disabilities Assistance and

Bill of Rights Act".

Par. (4). Pub. L. 106-310, Sec. 3206(b)(1)(A), inserted ", except

as provided in section 10804(d) of this title," after "means" in

introductory provisions.

Par. (4)(B). Pub. L. 106-310, Sec. 3206(b)(1)(B), designated

existing provisions as cl. (i), redesignated former cls. (i) to

(iii) as subcls. (I) to (III), respectively, of cl. (i), and added

cl. (ii).

Par. (8). Pub. L. 106-310, Sec. 3206(b)(2), added par. (8).

1991 - Par. (1). Pub. L. 102-173, Sec. 10(1), substituted

"individual with mental illness" for "mentally ill individual"

wherever appearing.

Pars. (3) to (7). Pub. L. 102-173 added par. (3), redesignated

former pars. (3) to (6) as (4) to (7), respectively, and

substituted "individual with mental illness" for "mentally ill

individual" wherever appearing in pars. (4) and (5).

1988 - Par. (1). Pub. L. 100-509, Sec. 3(1), inserted "or death"

after "caused, injury".

Par. (3)(B). Pub. L. 100-509, Sec. 3(2), designated existing

provisions as cl. (i), substituted ", even if the whereabouts of

such inpatient or resident are unknown;" for period at end, and

added cls. (ii) and (iii).

Par. (4). Pub. L. 100-509, Sec. 3(3), inserted "or death" after

"injury" in two places and inserted before period at end ",

including the failure to maintain adequate numbers of appropriately

trained staff".

-TRANS-

TERMINATION OF TRUST TERRITORY OF THE PACIFIC ISLANDS

For termination of Trust Territory of the Pacific Islands, see

note set out preceding section 1681 of Title 48, Territories and

Insular Possessions.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 290ii-1, 10804, 10851 of

this title; title 29 section 794e.

-FOOTNOTE-

(!1) So in original. Probably should be "an".

(!2) So in original.

(!3) See References in Text note below.

-End-

-CITE-

42 USC Sec. 10803 01/06/03

-EXPCITE-

TITLE 42 - THE PUBLIC HEALTH AND WELFARE

CHAPTER 114 - PROTECTION AND ADVOCACY FOR MENTALLY ILL INDIVIDUALS

SUBCHAPTER I - PROTECTION AND ADVOCACY SYSTEMS

Part A - Establishment of Systems

-HEAD-

Sec. 10803. Allotments

-STATUTE-

The Secretary shall make allotments under this subchapter to

eligible systems to establish and administer systems -

(1) which meet the requirements of section 10805 of this title;

and

(2) which are designed to -

(A) protect and advocate the rights of individuals with

mental illness; 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.

-SOURCE-

(Pub. L. 99-319, title I, Sec. 103, May 23, 1986, 100 Stat. 479;

Pub. L. 102-173, Sec. 10(2), Nov. 27, 1991, 105 Stat. 1219.)

-MISC1-

AMENDMENTS

1991 - Par. (2). Pub. L. 102-173 substituted "individuals with

mental illness" for "mentally ill individuals" in two places.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 10805, 10822 of this

title.

-End-

-CITE-

42 USC Sec. 10804 01/06/03

-EXPCITE-

TITLE 42 - THE PUBLIC HEALTH AND WELFARE

CHAPTER 114 - PROTECTION AND ADVOCACY FOR MENTALLY ILL INDIVIDUALS

SUBCHAPTER I - PROTECTION AND ADVOCACY SYSTEMS

Part A - Establishment of Systems

-HEAD-

Sec. 10804. Use of allotments

-STATUTE-

(a) Contracts

(1) An eligible system may use its allotment under this

subchapter to enter into contracts with State agencies and

nonprofit organizations which operate throughout the State. In

order to be eligible for a contract under this paragraph -

(A) such an agency shall be independent of any agency which

provides treatment or services (other than advocacy services) to

individuals with mental illness; and

(B) such an agency or organization shall have the capacity to

protect and advocate the rights of individuals with mental

illness.

(2) In carrying out paragraph (1), an eligible system should

consider entering into contracts with organizations including, in

particular, groups run by individuals who have received or are

receiving mental health services, or the family members of such

individuals, which,(!1) provide protection or advocacy services to

individuals with mental illness.

(b) Obligation of allotments; technical assistance and training

(1) If an eligible system is a public entity, the government of

the State in which the system is located may not require the system

to obligate more than 5 percent of its allotment under this

subchapter in any fiscal year for administrative expenses.

(2) An eligible system may not use more than 10 percent of any

allotment under this subchapter for any fiscal year for the costs

of providing technical assistance and training to carry out this

subchapter.

(c) Representation of individuals with mental illness

An eligible system may use its allotment under this subchapter to

provide representation to individuals with mental illness in

Federal facilities who request representation by the eligible

system. Representatives of such individuals from such system shall

be accorded all the rights and authority accorded to other

representatives of residents of such facilities pursuant to State

law and other Federal laws.

(d) Definition for purposes of representation of individuals with

mental illness; priority

The definition of "individual with a mental illness" contained in

section 10802(4)(B)(iii) of this title shall apply, and thus an

eligible system may use its allotment under this subchapter to

provide representation to such individuals, only if the total

allotment under this subchapter for any fiscal year is $30,000,000

or more, and in such case, an eligible system must give priority to

representing persons with mental illness as defined in

subparagraphs (A) and (B)(i) of section 10802(4) of this title.

-SOURCE-

(Pub. L. 99-319, title I, Sec. 104, May 23, 1986, 100 Stat. 479;

Pub. L. 100-509, Sec. 7(a), (b)(1), Oct. 20, 1988, 102 Stat. 2544;

Pub. L. 102-173, Secs. 5, 10(2), Nov. 27, 1991, 105 Stat. 1217,

1219; Pub. L. 106-310, div. B, title XXXII, Sec. 3206(c), Oct. 17,

2000, 114 Stat. 1194.)

-MISC1-

AMENDMENTS

2000 - Subsec. (d). Pub. L. 106-310 added subsec. (d).

1991 - Subsec. (a). Pub. L. 102-173, Sec. 10(2), substituted

"individuals with mental illness" for "mentally ill individuals" in

three places.

Subsec. (c). Pub. L. 102-173, Sec. 5, added subsec. (c).

1988 - Subsec. (a)(2). Pub. L. 100-509, Sec. 7(a), substituted

"including, in particular, groups run by individuals who have

received or are receiving mental health services, or the family

members of such individuals, which" for "which, on May 23, 1986".

Subsec. (b)(2). Pub. L. 100-509, Sec. 7(b)(1), substituted "10"

for "5".

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 10802, 10807, 10821 of

this title.

-FOOTNOTE-

(!1) So in original. The comma probably should not appear.

-End-

-CITE-

42 USC Sec. 10805 01/06/03

-EXPCITE-

TITLE 42 - THE PUBLIC HEALTH AND WELFARE

CHAPTER 114 - PROTECTION AND ADVOCACY FOR MENTALLY ILL INDIVIDUALS

SUBCHAPTER I - PROTECTION AND ADVOCACY SYSTEMS

Part A - Establishment of Systems

-HEAD-

Sec. 10805. System requirements

-STATUTE-

(a) Authority; independent status; access to facilities and

records; advisory council; annual report; grievance procedure

A system established in a State under section 10803 of this title

to protect and advocate the rights of individuals with mental

illness shall -

(1) have the authority to -

(A) 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;

(B) 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; and

(C) pursue administrative, legal, and other remedies on

behalf of an individual who -

(i) was a (!1) individual with mental illness; and

(ii) is a resident of the State,

but only with respect to matters which occur within 90 days

after the date of the discharge of such individual from a

facility providing care or treatment;

(2) be independent of any agency in the State which provides

treatment or services (other than advocacy services) to

individuals with mental illness;

(3) have access to facilities in the State providing care or

treatment;

(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) -

(i) 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 -

(i) 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;

(5) have an arrangement with the Secretary and the agency of

the State which administers the State plan under title XIX of the

Social Security Act [42 U.S.C. 1396 et seq.] for the furnishing

of the information required by subsection (b) of this section;

(6) establish an advisory council -

(A) which will advise the system on policies and priorities

to be carried out in protecting and advocating the rights of

individuals with mental illness;

(B) which shall include attorneys, mental health

professionals, individuals from the public who are

knowledgeable about mental illness, a provider of mental health

services, individuals who have received or are receiving mental

health services, and family members of such individuals, and at

least 60 percent the membership of which shall be comprised of

individuals who have received or are receiving mental health

services or who are family members of such individuals; and

(C) which shall be chaired by an individual who has received

or is receiving mental health services or who is a family

member of such an individual;

(7) on January 1, 1987, and January 1 of each succeeding year,

prepare and transmit to the Secretary and the head of the State

mental health agency of the State in which the system is located

a report describing the activities, accomplishments, and

expenditures of the system during the most recently completed

fiscal year, including a section prepared by the advisory council

that describes the activities of the council and its assessment

of the operations of the system;

(8) on an annual basis, provide the public with an opportunity

to comment on the priorities established by, and the activities

of, the system;

(9) establish a grievance procedure for clients or prospective

clients of the system to assure that individuals with mental

illness have full access to the services of the system and for

individuals who have received or are receiving mental health

services, family members of such individuals with mental illness,

or representatives of such individuals or family members to

assure that the eligible system is operating in compliance with

the provisions of this subchapter and subchapter III of this

chapter; and

(10) not use allotments provided to a system in a manner

inconsistent with section 14404 of this title.

(b) Annual survey report; plan of corrections

The Secretary and the agency of a State which administers its

State plan under title XIX of the Social Security Act [42 U.S.C.

1396 et seq.] shall provide the eligible system of the State with a

copy of each annual survey report and plan of corrections for cited

deficiencies made pursuant to titles XVIII and XIX of the Social

Security Act [42 U.S.C. 1395 et seq., 1396 et seq.] with respect to

any facility rendering care or treatment to individuals with mental

illness in the State in which such system is located. A report or

plan shall be made available within 30 days after the completion of

the report or plan.

(c) Governing authority

(1)(A) Each system established in a State, through allotments

received under section 10803 of this title, to protect and advocate

the rights of individuals with mental illness shall have a

governing authority.

(B) In States in which the governing authority is organized as a

private non-profit entity with a multi-member governing board, or a

public system with a multi-member governing board, such governing

board shall be selected according to the policies and procedures of

the system. The governing board shall be composed of -

(i) members (to be selected no later than October 1, 1990) who

broadly represent or are knowledgeable about the needs of the

clients served by the system; and

(ii) in the case of a governing authority organized as a

private non-profit entity, members who broadly represent or are

knowledgeable about the needs of the clients served by the system

including the chairperson of the advisory council of such system.

As used in this subparagraph, the term "members who broadly

represent or are knowledgeable about the needs of the clients

served by the system" shall be construed to include individuals who

have received or are receiving mental health services and family

members of such individuals.

(2) The governing authority established under paragraph (1) shall

-

(A) be responsible for the planning, design, implementation,

and functioning of the system; and

(B) consistent with subparagraph (A), jointly develop the

annual priorities of the system with the advisory council.

-SOURCE-

(Pub. L. 99-319, title I, Sec. 105, May 23, 1986, 100 Stat. 480;

Pub. L. 100-509, Secs. 4-6(a), 7(c), Oct. 20, 1988, 102 Stat.

2543-2545; Pub. L. 102-173, Secs. 6, 10, Nov. 27, 1991, 105 Stat.

1218, 1219; Pub. L. 105-12, Sec. 9(m), Apr. 30, 1997, 111 Stat.

28.)

-REFTEXT-

REFERENCES IN TEXT

The Social Security Act, referred to in subsecs. (a)(5) and (b),

is act Aug. 14, 1935, ch. 531, 49 Stat. 620, as amended. Titles

XVIII and XIX of the Social Security Act are classified generally

to subchapters XVIII (Sec. 1395 et seq.) and XIX (Sec. 1396 et

seq.) of chapter 7 of this title, respectively. For complete

classification of this Act to the Code, see section 1305 of this

title and Tables.

-MISC1-

AMENDMENTS

1997 - Subsec. (a)(10). Pub. L. 105-12 added par. (10).

1991 - Subsec. (a). Pub. L. 102-173, Sec. 10, substituted

"individual with mental illness" for "mentally ill individual" and

"individuals with mental illness" for "mentally ill individuals"

wherever appearing.

Subsec. (a)(4). Pub. L. 102-173, Sec. 6(a), inserted "as a result

of monitoring or other activities (either of which result from a

complaint or other evidence)" before "there is" in subpar. (B)(iii)

and added subpar. (C).

Subsec. (a)(6). Pub. L. 102-173, Sec. 6(b), substituted "60

percent" for "one-half" in subpar. (B) and added subpar. (C).

Subsec. (a)(9). Pub. L. 102-173, Sec. 6(c), inserted before

period at end "and for individuals who have received or are

receiving mental health services, family members of such

individuals with mental illness, or representatives of such

individuals or family members to assure that the eligible system is

operating in compliance with the provisions of this subchapter and

subchapter III of this chapter".

Subsec. (b). Pub. L. 102-173, Sec. 10(2), substituted

"individuals with mental illness" for "mentally ill individuals".

Subsec. (c)(1). Pub. L. 102-173, Secs. 6(d), 10(2), substituted

"individuals with mental illness" for "mentally ill individuals" in

subpar. (A) and inserted at end of subpar. (B) "As used in this

subparagraph, the term 'members who broadly represent or are

knowledgeable about the needs of the clients served by the system'

shall be construed to include individuals who have received or are

receiving mental health services and family members of such

individuals."

1988 - Subsec. (a)(4)(B). Pub. L. 100-509, Sec. 6(a), inserted

"(including an individual who has died or whose whereabouts are

unknown)" after "any individual".

Subsec. (a)(6). Pub. L. 100-509, Sec. 4(1), substituted "an

advisory council" for "a board".

Subsec. (a)(7). Pub. L. 100-509, Sec. 5, substituted ", including

a section prepared by the advisory council that describes the

activities of the council and its assessment of the operations of

the system;" for period at end.

Subsec. (a)(8), (9). Pub. L. 100-509, Sec. 7(c), added pars. (8)

and (9).

Subsec. (c). Pub. L. 100-509, Sec. 4(2), added subsec. (c).

EFFECTIVE DATE OF 1997 AMENDMENT

Amendment by Pub. L. 105-12 effective Apr. 30, 1997, and

applicable to Federal payments made pursuant to obligations

incurred after Apr. 30, 1997, for items and services provided on or

after such date, subject to also being applicable with respect to

contracts entered into, renewed, or extended after Apr. 30, 1997,

as well as contracts entered into before Apr. 30, 1997, to the

extent permitted under such contracts, see section 11 of Pub. L.

105-12, set out as an Effective Date note under section 14401 of

this title.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 10803, 10806, 10824 of

this title.

-FOOTNOTE-

(!1) So in original. Probably should be "an".

-End-

-CITE-

42 USC Sec. 10806 01/06/03

-EXPCITE-

TITLE 42 - THE PUBLIC HEALTH AND WELFARE

CHAPTER 114 - PROTECTION AND ADVOCACY FOR MENTALLY ILL INDIVIDUALS

SUBCHAPTER I - PROTECTION AND ADVOCACY SYSTEMS

Part A - Establishment of Systems

-HEAD-

Sec. 10806. Access to records

-STATUTE-

(a) An eligible system which, pursuant to section 10805(a)(4) of

this title, has access to records which, under Federal or State

law, are required to be maintained in a confidential manner by a

provider of mental health services, shall, except as provided in

subsection (b) of this section, maintain the confidentiality of

such records to the same extent as is required of the provider of

such services.

(b)(1) Except as provided in paragraph (2), an eligible system

which has access to records pursuant to section 10805(a)(4) of this

title may not disclose information from such records to the

individual who is the subject of the information if the mental

health professional responsible for supervising the provision of

mental health services to such individual has provided the system

with a written determination that disclosure of such information to

such individual would be detrimental to such individual's health.

(2)(A) If disclosure of information has been denied under

paragraph (1) to an individual -

(i) such individual;

(ii) the legal guardian, conservator, or other legal

representative of such individual; or

(iii) an eligible system, acting on behalf of an individual

described in subparagraph (B),

may select another mental health professional to review such

information and to determine if disclosure of such information

would be detrimental to such individual's health. If such mental

health professional determines, based on professional judgment,

that disclosure of such information would not be detrimental to the

health of such individual, the system may disclose such information

to such individual.

(B) An eligible system may select a mental health professional

under subparagraph (A)(iii) on behalf of -

(i) an individual whose legal guardian is the State; or

(ii) an individual who has a legal guardian, conservator, or

other legal representative other than the State if such guardian,

conservator, or representative does not, within a reasonable time

after such individual is denied access to information under

paragraph (1), select a mental health professional under

subparagraph (A) to review such information.

(C) If the laws of a State prohibit an eligible system from

obtaining access to the records of individuals with mental illness

in accordance with section 10805(a)(4) of this title and this

section, section 10805(a)(4) of this title and this section shall

not apply to such system before -

(i) the date such system is no longer subject to such a

prohibition; or

(ii) the expiration of the 2-year period beginning on May 23,

1986,

whichever occurs first.

(3)(A) As used in this section, the term "records" includes

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 that describe incidents of abuse,

neglect, and injury occurring at such facility and the steps taken

to investigate such incidents, and discharge planning records.

(B) An eligible system shall have access to the type of records

described in subparagraph (A) in accordance with the provisions of

subsection (a) of this section and paragraphs (1) and (2) of

subsection (b) of this section.

-SOURCE-

(Pub. L. 99-319, title I, Sec. 106, May 23, 1986, 100 Stat. 481;

Pub. L. 100-509, Sec. 6(b), Oct. 20, 1988, 102 Stat. 2544; Pub. L.

102-173, Sec. 10(2), Nov. 27, 1991, 105 Stat. 1219.)

-MISC1-

AMENDMENTS

1991 - Subsec. (b)(2)(C). Pub. L. 102-173 substituted

"individuals with mental illness" for "mentally ill individuals".

1988 - Subsec. (b)(3). Pub. L. 100-509 added par. (3).

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 10805 of this title.

-End-

-CITE-

42 USC Sec. 10807 01/06/03

-EXPCITE-

TITLE 42 - THE PUBLIC HEALTH AND WELFARE

CHAPTER 114 - PROTECTION AND ADVOCACY FOR MENTALLY ILL INDIVIDUALS

SUBCHAPTER I - PROTECTION AND ADVOCACY SYSTEMS

Part A - Establishment of Systems

-HEAD-

Sec. 10807. Legal actions

-STATUTE-

(a) Prior to instituting any legal action in a Federal or State

court on behalf of a (!1) individual with mental illness, an

eligible system, or a State agency or nonprofit organization which

entered into a contract with an eligible system under section

10804(a) of this title, shall exhaust in a timely manner all

administrative remedies where appropriate. If, in pursuing

administrative remedies, the system, agency, or organization

determines that any matter with respect to such individual will not

be resolved within a reasonable time, the system, agency, or

organization may pursue alternative remedies, including the

initiation of a legal action.

(b) Subsection (a) of this section does not apply to any legal

action instituted to prevent or eliminate imminent serious harm to

a (!1) individual with mental illness.

-SOURCE-

(Pub. L. 99-319, title I, Sec. 107, May 23, 1986, 100 Stat. 482;

Pub. L. 102-173, Sec. 10(1), Nov. 27, 1991, 105 Stat. 1219.)

-MISC1-

AMENDMENTS

1991 - Pub. L. 102-173 substituted "individual with mental

illness" for "mentally ill individual" in subsecs. (a) and (b).

-FOOTNOTE-

(!1) So in original. Probably should be "an".

-End-

-CITE-

42 USC Part B - Administrative Provisions 01/06/03

-EXPCITE-

TITLE 42 - THE PUBLIC HEALTH AND WELFARE

CHAPTER 114 - PROTECTION AND ADVOCACY FOR MENTALLY ILL INDIVIDUALS

SUBCHAPTER I - PROTECTION AND ADVOCACY SYSTEMS

Part B - Administrative Provisions

-HEAD-

PART B - ADMINISTRATIVE PROVISIONS

-End-

-CITE-

42 USC Sec. 10821 01/06/03

-EXPCITE-

TITLE 42 - THE PUBLIC HEALTH AND WELFARE

CHAPTER 114 - PROTECTION AND ADVOCACY FOR MENTALLY ILL INDIVIDUALS

SUBCHAPTER I - PROTECTION AND ADVOCACY SYSTEMS

Part B - Administrative Provisions

-HEAD-

Sec. 10821. Applications

-STATUTE-

(a) Submission for allotment; contents

No allotment may be made under this subchapter to an eligible

system unless an application therefor is submitted to the

Secretary. Each such application shall contain -

(1) assurances that amounts paid to such system from an

allotment under this subchapter will be used to supplement and

not to supplant the level of non-Federal funds available in the

State in which such system is established to protect and advocate

the rights of individuals with mental illness;

(2) assurances that such system will have a staff which is

trained or being trained to provide advocacy services to

individuals with mental illness and to work with family members

of clients served by the system where the individuals with mental

illness are minors, legally competent and do not object, and

legally incompetent and the legal guardians, conservators, or

other legal representatives are family members;

(3) assurances that such system, and any State agency or

nonprofit organization with which such system may enter into a

contract under section 10804(a) of this title, will not, in the

case of any individual who has a legal guardian, conservator, or

representative other than the State, take actions which are

duplicative of actions taken on behalf of such individual by such

guardian, conservator, or representative unless such guardian,

conservator, or representative requests the assistance of such

system; and

(4) such other information as the Secretary may by regulation

prescribe.

(b) Satisfaction of requirements regarding trained staff

The assurance required under subsection (a)(2) of this section

regarding trained staff may be satisfied through the provision of

training by individuals who have received or are receiving mental

health services and family members of such individuals.

(c) Duration of applications and assurances

Applications submitted under this section shall remain in effect

for a 4-year period, and the assurances required under this section

shall be for the same 4-year period.

-SOURCE-

(Pub. L. 99-319, title I, Sec. 111, May 23, 1986, 100 Stat. 482;

Pub. L. 100-509, Sec. 7(d), Oct. 20, 1988, 102 Stat. 2545; Pub. L.

102-173, Secs. 7, 10(2), Nov. 27, 1991, 105 Stat. 1218, 1219; Pub.

L. 102-321, title I, Sec. 163(c)(3)(A), July 10, 1992, 106 Stat.

377.)

-MISC1-

AMENDMENTS

1992 - Subsec. (c). Pub. L. 102-321 substituted "4-year" for

"3-year" in two places.

1991 - Subsec. (a)(1). Pub. L. 102-173, Sec. 10(2), substituted

"individuals with mental illness" for "mentally ill individuals".

Subsec. (a)(2). Pub. L. 102-173, Secs. 7(1), 10(2), substituted

"individuals with mental illness" for "mentally ill individuals"

and inserted before semicolon at end "and to work with family

members of clients served by the system where the individuals with

mental illness are minors, legally competent and do not object, and

legally incompetent and the legal guardians, conservators, or other

legal representatives are family members".

Subsecs. (b), (c). Pub. L. 102-173, Sec. 7(2), (3) added subsec.

(b) and redesignated former subsec. (b) as (c).

1988 - Pub. L. 100-509 designated existing provisions as subsec.

(a) and added subsec. (b).

EFFECTIVE DATE OF 1992 AMENDMENT

Amendment by Pub. L. 102-321 effective Oct. 1, 1992, with

provision for programs providing financial assistance, see section

801(c), (d) of Pub. L. 102-321, set out as a note under section 236

of this title.

-End-

-CITE-

42 USC Sec. 10822 01/06/03

-EXPCITE-

TITLE 42 - THE PUBLIC HEALTH AND WELFARE

CHAPTER 114 - PROTECTION AND ADVOCACY FOR MENTALLY ILL INDIVIDUALS

SUBCHAPTER I - PROTECTION AND ADVOCACY SYSTEMS

Part B - Administrative Provisions

-HEAD-

Sec. 10822. Allotment formula and reallotments

-STATUTE-

(a)(1)(A) Except as provided in paragraph (2) and subject to the

availability of appropriations under section 10827 of this title,

the Secretary shall make allotments under section 10803 of this

title from amounts appropriated under section 10827 of this title

for a fiscal year to eligible systems on the basis of a formula

prescribed by the Secretary which is based equally -

(i) on the population of each State in which there is an

eligible system; and

(ii) on the population of each such State weighted by its

relative per capita income.

(B) For purposes of subparagraph (A)(ii), the term "relative per

capita income" means the quotient of the per capita income of the

United States and the per capita income of the State, except that

if the State is Guam, American Samoa, the Commonwealth of the

Northern Mariana Islands, the Marshall Islands, the Federated

States of Micronesia, the Republic of Palau, or the Virgin Islands,

the quotient shall be considered to be one.

(2)(A) The minimum amount of the allotment of an eligible system

shall be the product (rounded to the nearest $100) of the

appropriate base amount determined under subparagraph (B) and the

factor specified in subparagraph (C).

(B) For purposes of subparagraph (A), the appropriate base amount

-

(i) for American Samoa, Guam, the Marshall Islands, the

Federated States of Micronesia, the Commonwealth of the Northern

Mariana Islands, the Republic of Palau, and the Virgin Islands,

is $139,300; and

(ii) for any other State, is $260,000.

(C) The factor specified in this subparagraph is the ratio of the

amount appropriated under section 10827 of this title for the

fiscal year for which the allotment is being made to the amount

appropriated under such section for fiscal year 1995.

(D) If the total amount appropriated for a fiscal year is at

least $25,000,000, the Secretary shall make an allotment in

accordance with subparagraph (A) to the eligible system serving the

American Indian consortium.

(b)(1) To the extent that all the amounts appropriated under

section 10827 of this title for a fiscal year are not allotted to

eligible systems because -

(A) one or more eligible systems have not submitted an

application for an allotment for such fiscal year; or

(B) one or more eligible systems have notified the Secretary

that they do not intend to use the full amount of their

allotment,

the amount which is not so allotted shall be reallotted among the

remaining eligible systems.

(2) The amount of an allotment to an eligible system for a fiscal

year which the Secretary determines will not be required by the

system during the period for which it is available shall be

available for reallotment by the Secretary to other eligible

systems with respect to which such a determination has not been

made.

(3) The Secretary shall make reallotments under paragraphs (1)

and (2) on such date or dates as the Secretary may fix (but not

earlier than 30 days after the Secretary has published notice of

the intention of the Secretary to make such reallotment in the

Federal Register). A reallotment to an eligible system shall be

made in proportion to the original allotment of such system for

such fiscal year, but with such proportionate amount for such

system being reduced to the extent it exceeds the sum the Secretary

estimates such system needs and will be able to use during such

period. The total of such reductions shall be similarly reallotted

among eligible systems whose proportionate amounts were not so

reduced. Any amount so reallotted to an eligible system for a

fiscal year shall be deemed to be a part of its allotment under

subsection (a) of this section for such fiscal year.

-SOURCE-

(Pub. L. 99-319, title I, Sec. 112, May 23, 1986, 100 Stat. 483;

Pub. L. 100-509, Sec. 7(e), Oct. 20, 1988, 102 Stat. 2545; Pub. L.

106-310, div. B, title XXXII, Sec. 3206(d), (e), Oct. 17, 2000, 114

Stat. 1194, 1195.)

-MISC1-

AMENDMENTS

2000 - Subsec. (a)(1)(B). Pub. L. 106-310, Sec. 3206(e)(1),

substituted "Marshall Islands, the Federated States of Micronesia,

the Republic of Palau" for "Trust Territory of the Pacific

Islands".

Subsec. (a)(2). Pub. L. 106-310, Sec. 3206(d), amended par. (2)

generally. Prior to amendment, par. (2) specified minimum amounts

of allotments to eligible systems of each State, the District of

Columbia, the Commonwealth of Puerto Rico, Guam, American Samoa,

the Commonwealth of the Northern Mariana Islands, the Trust

Territory of the Pacific Islands, and the Virgin Islands based on

whether the total amount appropriated in a fiscal year was at least

$13,000,000 or less than $13,000,000.

Subsec. (a)(3). Pub. L. 106-310, Sec. 3206(e)(2), struck out par.

(3) which read as follows: "In any case in which the total amount

appropriated under section 10827 of this title for a fiscal year

exceeds the total amount appropriated under such section, as in

effect on October 19, 1988, for the preceding fiscal year by a

percentage greater than the most recent percentage change in the

Consumer Price Index published by the Secretary of Labor under

section 720(c)(1) of title 29, the Secretary shall increase each of

the allotments under clauses (i)(II) and (ii)(II) of subparagraph

(A) and clauses (i) and (ii) of subparagraph (B) of paragraph (2)

by an amount which bears the same ratio to the amount of such

minimum allotment (including any increases in such minimum

allotment under this paragraph for prior fiscal years) as the

amount which is equal to the difference between -

"(A) the total amount appropriated under section 10827 of this

title for the fiscal year for which the increase in minimum

allotment is made, minus;

"(B) the total amount appropriated under section 10827 of this

title for the immediately preceding fiscal year,

bears to the total amount appropriated under section 10827 of this

title for such preceding fiscal year."

1988 - Subsec. (a)(2). Pub. L. 100-509, Sec. 7(e)(1), amended

par. (2) generally. Prior to amendment, par. (2) read as follows:

"Notwithstanding paragraph (1) and subject to the availability of

appropriations under section 10827 of this title -

"(A) the amount of the allotment of the eligible system of each

of the several States, the District of Columbia, and the

Commonwealth of Puerto Rico shall not be less than $125,000; and

"(B) the amount of the allotment of the eligible system of

Guam, American Samoa, the Commonwealth of the Northern Mariana

Islands, the Trust Territory of the Pacific Islands, and the

Virgin Islands shall not be less than $67,000."

Subsec. (a)(3). Pub. L. 100-509, Sec. 7(e)(2), added par. (3).

-End-

-CITE-

42 USC Sec. 10823 01/06/03

-EXPCITE-

TITLE 42 - THE PUBLIC HEALTH AND WELFARE

CHAPTER 114 - PROTECTION AND ADVOCACY FOR MENTALLY ILL INDIVIDUALS

SUBCHAPTER I - PROTECTION AND ADVOCACY SYSTEMS

Part B - Administrative Provisions

-HEAD-

Sec. 10823. Payments under allotments

-STATUTE-

For each fiscal year, the Secretary shall make payments to each

eligible system from its allotment under this subchapter. Any

amount paid to an eligible system for a fiscal year and remaining

unobligated at the end of such year shall remain available to such

system for the next fiscal year for the purposes for which it was

made.

-SOURCE-

(Pub. L. 99-319, title I, Sec. 113, May 23, 1986, 100 Stat. 484.)

-End-

-CITE-

42 USC Sec. 10824 01/06/03

-EXPCITE-

TITLE 42 - THE PUBLIC HEALTH AND WELFARE

CHAPTER 114 - PROTECTION AND ADVOCACY FOR MENTALLY ILL INDIVIDUALS

SUBCHAPTER I - PROTECTION AND ADVOCACY SYSTEMS

Part B - Administrative Provisions

-HEAD-

Sec. 10824. Reports by Secretary

-STATUTE-

(a) The Secretary shall include in each report required under

section 15005 of this title a separate statement which contains -

(1) a description of the activities, accomplishments, and

expenditures of systems to protect and advocate the rights of

individuals with mental illness supported with payments from

allotments under this subchapter, including -

(A) a specification of the total number of individuals with

mental illness served by such systems;

(B) a description of the types of activities undertaken by

such systems;

(C) a description of the types of facilities providing care

or treatment with respect to which such activities are

undertaken;

(D) a description of the manner in which such activities are

initiated; and

(E) a description of the accomplishments resulting from such

activities;

(2) a description of -

(A) systems to protect and advocate the rights of individuals

with mental illness supported with payments from allotments

under this subchapter;

(B) activities conducted by States to protect and advocate

such rights;

(C) mechanisms established by residential facilities for

individuals with mental illness to protect and advocate such

rights; and

(D) the coordination among such systems, activities, and

mechanisms;

(3) a specification of the number of systems established with

allotments under this subchapter and of whether each such system

was established by a public or nonprofit private entity; and

(4) recommendations for activities and services to improve the

protection and advocacy of the rights of individuals with mental

illness and a description of needs for such activities and

services which have not been met by systems established under

this subchapter.

(b) In preparing each statement required by subsection (a) of

this section, the Secretary shall use and include information

submitted to the Secretary in the reports required under section

10805(a)(7) of this title.

-SOURCE-

(Pub. L. 99-319, title I, Sec. 114, May 23, 1986, 100 Stat. 484;

Pub. L. 102-173, Sec. 10(2), Nov. 27, 1991, 105 Stat. 1219; Pub. L.

106-402, title IV, Sec. 401(b)(13)(B), Oct. 30, 2000, 114 Stat.

1739.)

-MISC1-

AMENDMENTS

2000 - Subsec. (a). Pub. L. 106-402 substituted "section 15005 of

this title" for "section 6006(c) of this title" in introductory

provisions.

1991 - Subsec. (a). Pub. L. 102-173 substituted "individuals with

mental illness" for "mentally ill individuals" wherever appearing.

-End-

-CITE-

42 USC Sec. 10825 01/06/03

-EXPCITE-

TITLE 42 - THE PUBLIC HEALTH AND WELFARE

CHAPTER 114 - PROTECTION AND ADVOCACY FOR MENTALLY ILL INDIVIDUALS

SUBCHAPTER I - PROTECTION AND ADVOCACY SYSTEMS

Part B - Administrative Provisions

-HEAD-

Sec. 10825. Technical assistance

-STATUTE-

The Secretary shall use not more than 2 percent of the amounts

appropriated under section 10827 of this title to provide technical

assistance to eligible systems with respect to activities carried

out under this subchapter, consistent with requests by such systems

for such assistance.

-SOURCE-

(Pub. L. 99-319, title I, Sec. 115, May 23, 1986, 100 Stat. 484;

Pub. L. 100-509, Sec. 7(b)(2), Oct. 20, 1988, 102 Stat. 2545.)

-MISC1-

AMENDMENTS

1988 - Pub. L. 100-509 amended section generally. Prior to

amendment, section read as follows: "The Secretary shall provide

technical assistance to eligible systems with respect to activities

carried out under this subchapter."

-End-

-CITE-

42 USC Sec. 10826 01/06/03

-EXPCITE-

TITLE 42 - THE PUBLIC HEALTH AND WELFARE

CHAPTER 114 - PROTECTION AND ADVOCACY FOR MENTALLY ILL INDIVIDUALS

SUBCHAPTER I - PROTECTION AND ADVOCACY SYSTEMS

Part B - Administrative Provisions

-HEAD-

Sec. 10826. Administration

-STATUTE-

(a) In general

The Secretary shall carry out this subchapter through the

Administrator of the Substance Abuse and Mental Health Services

Administration.

(b) Regulations

Not later than 6 months after November 27, 1991, the Secretary

shall promulgate final regulations to carry out this subchapter and

subchapter III of this chapter.

-SOURCE-

(Pub. L. 99-319, title I, Sec. 116, May 23, 1986, 100 Stat. 485;

Pub. L. 102-173, Sec. 9, Nov. 27, 1991, 105 Stat. 1219; Pub. L.

102-321, title I, Sec. 163(c)(3)(B), July 10, 1992, 106 Stat. 377.)

-MISC1-

AMENDMENTS

1992 - Subsec. (a). Pub. L. 102-321 substituted "the Substance

Abuse and Mental Health Services Administration" for "the Alcohol,

Drug Abuse, and Mental Health Administration".

1991 - Pub. L. 102-173 designated existing provisions as subsec.

(a), inserted heading, and added subsec. (b).

EFFECTIVE DATE OF 1992 AMENDMENT

Amendment by Pub. L. 102-321 effective Oct. 1, 1992, see section

801(c) of Pub. L. 102-321, set out as a note under section 236 of

this title.

-End-

-CITE-

42 USC Sec. 10827 01/06/03

-EXPCITE-

TITLE 42 - THE PUBLIC HEALTH AND WELFARE

CHAPTER 114 - PROTECTION AND ADVOCACY FOR MENTALLY ILL INDIVIDUALS

SUBCHAPTER I - PROTECTION AND ADVOCACY SYSTEMS

Part B - Administrative Provisions

-HEAD-

Sec. 10827. Authorization of appropriations

-STATUTE-

There are authorized to be appropriated for allotments under this

subchapter, $19,500,000 for fiscal year 1992, and such sums as may

be necessary for each of the fiscal years 1993 through 2003.

-SOURCE-

(Pub. L. 99-319, title I, Sec. 117, May 23, 1986, 100 Stat. 485;

Pub. L. 100-509, Sec. 7(f), Oct. 20, 1988, 102 Stat. 2546; Pub. L.

102-173, Sec. 8, Nov. 27, 1991, 105 Stat. 1219; Pub. L. 106-310,

div. B, title XXXII, Sec. 3206(f), Oct. 17, 2000, 114 Stat. 1195.)

-MISC1-

AMENDMENTS

2000 - Pub. L. 106-310 substituted "2003" for "1995".

1991 - Pub. L. 102-173 amended section generally. Prior to

amendment, section read as follows: "For allotments under this

subchapter, there are authorized to be appropriated $14,300,000 for

fiscal year 1989, and such sums as may be necessary for fiscal year

1990 and fiscal year 1991."

1988 - Pub. L. 100-509 amended section generally. Prior to

amendment, section read as follows: "For allotments under this

subchapter, there are authorized to be appropriated $10,000,000 for

fiscal year 1986, $10,500,000 for fiscal year 1987, and $11,025,000

for fiscal year 1988."

EFFECTIVE DATE OF 1988 AMENDMENT

Section 8 of Pub. L. 100-509 provided that:

"(a) In General. - The amendments made by this Act [amending

sections 10802, 10804 to 10806, 10821, 10822, and 10825 of this

title], other than the amendment made by section 7(f) [amending

this section], shall become effective on the date of the enactment

of this Act [Oct. 20, 1988].

"(b) Authorization of Appropriations. - The amendment made by

section 7(f) [amending this section] shall become effective on

October 1, 1988."

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 10822, 10825 of this

title.

-End-

-CITE-

42 USC SUBCHAPTER II - RESTATEMENT OF BILL OF RIGHTS FOR

MENTAL HEALTH PATIENTS 01/06/03

-EXPCITE-

TITLE 42 - THE PUBLIC HEALTH AND WELFARE

CHAPTER 114 - PROTECTION AND ADVOCACY FOR MENTALLY ILL INDIVIDUALS

SUBCHAPTER II - RESTATEMENT OF BILL OF RIGHTS FOR MENTAL HEALTH

PATIENTS

-HEAD-

SUBCHAPTER II - RESTATEMENT OF BILL OF RIGHTS FOR MENTAL HEALTH

PATIENTS

-SECREF-

SUBCHAPTER REFERRED TO IN OTHER SECTIONS

This subchapter is referred to in section 10851 of this title.

-End-

-CITE-

42 USC Sec. 10841 01/06/03

-EXPCITE-

TITLE 42 - THE PUBLIC HEALTH AND WELFARE

CHAPTER 114 - PROTECTION AND ADVOCACY FOR MENTALLY ILL INDIVIDUALS

SUBCHAPTER II - RESTATEMENT OF BILL OF RIGHTS FOR MENTAL HEALTH

PATIENTS

-HEAD-

Sec. 10841. Restatement of bill of rights

-STATUTE-

It is the sense of the Congress that, as previously stated in

title V of the Mental Health Systems Act [42 U.S.C. 9501 et seq.],

each State should review and revise, if necessary, its laws to

ensure that mental health patients receive the protection and

services they require, and that in making such review and revision,

States should take into account the recommendations of the

President's Commission on Mental Health and the following:

(1) A person admitted to a program or facility for the purpose

of receiving mental health services should be accorded the

following:

(A) The right to appropriate treatment and related services

in a setting and under conditions that -

(i) are the most supportive of such person's personal

liberty; and

(ii) restrict such liberty only to the extent necessary

consistent with such person's treatment needs, applicable

requirements of law, and applicable judicial orders.

(B) The right to an individualized, written, treatment or

service plan (such plan to be developed promptly after

admission of such person), the right to treatment based on such

plan, the right to periodic review and reassessment of

treatment and related service needs, and the right to

appropriate revision of such plan, including any revision

necessary to provide a description of mental health services

that may be needed after such person is discharged from such

program or facility.

(C) The right to ongoing participation, in a manner

appropriate to such person's capabilities, in the planning of

mental health services to be provided such person (including

the right to participate in the development and periodic

revision of the plan described in subparagraph (B)), and, in

connection with such participation, the right to be provided

with a reasonable explanation, in terms and language

appropriate to such person's condition and ability to

understand, of -

(i) such person's general mental condition and, if such

program or facility has provided a physical examination, such

person's general physical condition;

(ii) the objectives of treatment;

(iii) the nature and significant possible adverse effects

of recommended treatments;

(iv) the reasons why a particular treatment is considered

appropriate;

(v) the reasons why access to certain visitors may not be

appropriate; and

(vi) any appropriate and available alternative treatments,

services, and types of providers of mental health services.

(D) The right not to receive a mode or course of treatment,

established pursuant to the treatment plan, in the absence of

such person's informed, voluntary, written consent to such mode

or course of treatment, except treatment -

(i) during an emergency situation if such treatment is

pursuant to or documented contemporaneously by the written

order of a responsible mental health professional; or

(ii) as permitted under applicable law in the case of a

person committed by a court to a treatment program or

facility.

(E) The right not to participate in experimentation in the

absence of such person's informed, voluntary, written consent,

the right to appropriate protections in connection with such

participation, including the right to a reasonable explanation

of the procedure to be followed, the benefits to be expected,

the relative advantages of alternative treatments, and the

potential discomforts and risks, and the right and opportunity

to revoke such consent.

(F) The right to freedom from restraint or seclusion, other

than as a mode or course of treatment or restraint or seclusion

during an emergency situation if such restraint or seclusion is

pursuant to or documented contemporaneously by the written

order of a responsible mental health professional.

(G) The right to a humane treatment environment that affords

reasonable protection from harm and appropriate privacy to such

person with regard to personal needs.

(H) The right to confidentiality of such person's records.

(I) The right to access, upon request, to such person's

mental health care records, except such person may be refused

access to -

(i) information in such records provided by a third party

under assurance that such information shall remain

confidential; and

(ii) specific material in such records if the health

professional responsible for the mental health services

concerned has made a determination in writing that such

access would be detrimental to such person's health, except

that such material may be made available to a similarly

licensed health professional selected by such person and such

health professional may, in the exercise of professional

judgment, provide such person with access to any or all parts

of such material or otherwise disclose the information

contained in such material to such person.

(J) The right, in the case of a person admitted on a

residential or inpatient care basis, to converse with others

privately, to have convenient and reasonable access to the

telephone and mails, and to see visitors during regularly

scheduled hours, except that, if a mental health professional

treating such person determines that denial of access to a

particular visitor is necessary for treatment purposes, such

mental health professional may, for a specific, limited, and

reasonable period of time, deny such access if such mental

health professional has ordered such denial in writing and such

order has been incorporated in the treatment plan for such

person. An order denying such access should include the reasons

for such denial.

(K) The right to be informed promptly at the time of

admission and periodically thereafter, in language and terms

appropriate to such person's condition and ability to

understand, of the rights described in this section.

(L) The right to assert grievances with respect to

infringement of the rights described in this section, including

the right to have such grievances considered in a fair, timely,

and impartial grievance procedure provided for or by the

program or facility.

(M) Notwithstanding subparagraph (J), the right of access to

(including the opportunities and facilities for private

communication with) any available -

(i) rights protection service within the program or

facility;

(ii) rights protection service within the State mental

health system designed to be available to such person;

(iii) system established under subchapter I of this chapter

to protect and advocate the rights of individuals with mental

illness; and

(iv) qualified advocate;

for the purpose of receiving assistance to understand,

exercise, and protect the rights described in this section and

in other provisions of law.

(N) The right to exercise the rights described in this

section without reprisal, including reprisal in the form of

denial of any appropriate, available treatment.

(O) The right to referral as appropriate to other providers

of mental health services upon discharge.

(2)(A) The rights described in this section should be in

addition to and not in derogation of any other statutory or

constitutional rights.

(B) The rights to confidentiality of and access to records as

provided in subparagraphs (H) and (I) of paragraph (1) should

remain applicable to records pertaining to a person after such

person's discharge from a program or facility.

(3)(A) No otherwise eligible person should be denied admission

to a program or facility for mental health services as a reprisal

for the exercise of the rights described in this section.

(B) Nothing in this section should -

(i) obligate an individual mental health or health

professional to administer treatment contrary to such

professional's clinical judgment;

(ii) prevent any program or facility from discharging any

person for whom the provision of appropriate treatment,

consistent with the clinical judgment of the mental health

professional primarily responsible for such person's treatment,

is or has become impossible as a result of such person's

refusal to consent to such treatment;

(iii) require a program or facility to admit any person who,

while admitted on prior occasions to such program or facility,

has repeatedly frustrated the purposes of such admissions by

withholding consent to proposed treatment; or

(iv) obligate a program or facility to provide treatment

services to any person who is admitted to such program or

facility solely for diagnostic or evaluative purposes.

(C) In order to assist a person admitted to a program or

facility in the exercise or protection of such person's rights,

such person's attorney or legal representatives should have

reasonable access to -

(i) such person;

(ii) the areas of the program or facility where such person

has received treatment, resided, or had access; and

(iii) pursuant to the written authorization of such person,

the records and information pertaining to such person's

diagnosis, treatment, and related services described in

paragraph (1)(I).

(D) Each program and facility should post a notice listing and

describing, in language and terms appropriate to the ability of

the persons to whom such notice is addressed to understand, the

rights described in this section of all persons admitted to such

program or facility. Each such notice should conform to the

format and content for such notices, and should be posted in all

appropriate locations.

(4)(A) In the case of a person adjudicated by a court of

competent jurisdiction as being incompetent to exercise the right

to consent to treatment or experimentation described in

subparagraph (D) or (E) of paragraph (1), or the right to

confidentiality of or access to records described in subparagraph

(H) or (I) of such paragraph, or to provide authorization as

described in paragraph (3)(C)(iii), such right may be exercised

or such authorization may be provided by the individual appointed

by such court as such person's guardian or representative for the

purpose of exercising such right or such authorization.

(B) In the case of a person who lacks capacity to exercise the

right to consent to treatment or experimentation under

subparagraph (D) or (E) of paragraph (1), or the right to

confidentiality of or access to records described in subparagraph

(H) or (I) of such paragraph, or to provide authorization as

described in paragraph (3)(C)(iii), because such person has not

attained an age considered sufficiently advanced under State law

to permit the exercise of such right or such authorization to be

legally binding, such right may be exercised or such

authorization may be provided on behalf of such person by a

parent or legal guardian of such person.

(C) Notwithstanding subparagraphs (A) and (B), in the case of a

person admitted to a program or facility for the purpose of

receiving mental health services, no individual employed by or

receiving any remuneration from such program or facility should

act as such person's guardian or representative.

-SOURCE-

(Pub. L. 99-319, title II, Sec. 201, May 23, 1986, 100 Stat. 485;

Pub. L. 102-173, Sec. 10(2), Nov. 27, 1991, 105 Stat. 1219.)

-REFTEXT-

REFERENCES IN TEXT

The Mental Health Systems Act, referred to in introductory text,

is Pub. L. 96-398, Oct. 7, 1980, 94 Stat. 1564, as amended. Title V

of the Mental Health Systems Act is classified generally to

subchapter IV (Sec. 9501 et seq.) of chapter 102 of this title. For

complete classification of this Act to the Code, see Short Title

note set out under section 9401 of this title and Tables.

-MISC1-

AMENDMENTS

1991 - Par. (1)(M)(iii). Pub. L. 102-173 substituted "individuals

with mental illness" for "mentally ill individuals".

-End-

-CITE-

42 USC SUBCHAPTER III - CONSTRUCTION 01/06/03

-EXPCITE-

TITLE 42 - THE PUBLIC HEALTH AND WELFARE

CHAPTER 114 - PROTECTION AND ADVOCACY FOR MENTALLY ILL INDIVIDUALS

SUBCHAPTER III - CONSTRUCTION

-HEAD-

SUBCHAPTER III - CONSTRUCTION

-SECREF-

SUBCHAPTER REFERRED TO IN OTHER SECTIONS

This subchapter is referred to in sections 10805, 10826 of this

title.

-End-

-CITE-

42 USC Sec. 10851 01/06/03

-EXPCITE-

TITLE 42 - THE PUBLIC HEALTH AND WELFARE

CHAPTER 114 - PROTECTION AND ADVOCACY FOR MENTALLY ILL INDIVIDUALS

SUBCHAPTER III - CONSTRUCTION

-HEAD-

Sec. 10851. Construction of subchapters I and II; "individual with

mental illness" defined

-STATUTE-

(a) Subchapters I and II of this chapter shall not be construed

as establishing any new rights for individuals with mental illness.

(b) For purposes of this section, the term "individual with

mental illness" has the same meaning as in section 10802(3) (!1) of

this title.

-SOURCE-

(Pub. L. 99-319, title III, Sec. 301, May 23, 1986, 100 Stat. 489;

Pub. L. 102-173, Sec. 10, Nov. 27, 1991, 105 Stat. 1219.)

-REFTEXT-

REFERENCES IN TEXT

Section 10802(3) of this title, referred to in subsec. (b), was

redesignated section 10802(4) of this title by Pub. L. 102-173,

Sec. 4(1), Nov. 27, 1991, 105 Stat. 1217.

-MISC1-

AMENDMENTS

1991 - Pub. L. 102-173, substituted "individuals with mental

illness" for "mentally ill individuals" in subsec. (a) and

"individual with mental illness" for "mentally ill individual" in

subsec. (b).

-FOOTNOTE-

(!1) See References in Text note below.

-End-