mental health professional qualified under the laws and regulations of the State; and (B)(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"; 1 (iii) who is involuntarily confined in a municipal detention facility for reasons other than serving a sentence resulting from conviction for a criminal offense. (4) 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 mentally ill individual or which placed a mentally ill individual 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 mentally ill individual, the failure to provide adequate nutrition, clothing, or health care to a mentally ill individual, or the failure to provide a safe environment for a mentally ill individual, including the failure to maintain adequate numbers of appropriately trained staff. (5) The term "Secretary" means the Secretary of Health and Human Services. (6) 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. (Pub. L. 99-319, title I, § 102, May 23, 1986, 100 Stat. 478; Pub. L. 100-509, § 3, Oct. 20, 1988, 102 Stat. 2543.) REFERENCES IN TEXT The Developmental Disabilities Assistance and Bill of Rights Act, referred to in par. (2), is title I of Pub. L. 88-164, as added by Pub. L. 98-527, § 2, Oct. 19, 1984, 98 Stat. 2662, as amended. Part C of the Developmental Disabilities Assistance and Bill of Rights Act is classified generally to subchapter III (§ 6041 et seq.) of chapter 75 of this title. For complete classification of this Act to the Code, see Short Title note set out under section 6000 of this title and Tables. AMENDMENTS 1988-Par. (1). Pub. L. 100-509, § 3(1), inserted "or death" after "caused, injury". Par. (3)(B). Pub. L. 100–509, § 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, § 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”. SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 10851 of this title. So in original. § 10803. Allotments 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 mentally ill individuals; and (B) investigate incidents of abuse and neglect of mentally ill individuals if the incidents are reported to the system or if there is probable cause to believe that the incidents occurred. (Pub. L. 99-319, title I, § 103, May 23, 1986, 100 Stat. 479.) SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 10805, 10822 of this title. 8 10804. Use of allotments (a)(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 mentally ill individuals; and (B) such an agency or organization shall have the capacity to protect and advocate the rights of mentally ill individuals. (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,2 provide protection or advocacy services to mentally ill individuals. (b)(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. (Pub. L. 99-319, title I, § 104, May 23, 1986, 100 Stat. 479; Pub. L. 100-509, § 7(a), (b)(1), Oct. 20, 1988, 102 Stat. 2544.) AMENDMENTS 1988-Subsec. (a)(2). Pub. L. 100–509, § 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, § 7(b)(1), substituted "10" for "5". * So in original. The comma probably should not appear. SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 10807, 10821 of this title. § 10805. System requirements (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 mentally ill individuals shall (1) have the authority to— (A) investigate incidents of abuse and neglect of mentally ill individuals 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 mentally ill individuals 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 mentally ill individual; and but only with respect to matters which (2) be independent of any agency in the State which provides treatment or services (other than advocacy services) to mentally ill individuals; (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; and (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 there is probable cause to believe that such individual has been subject to abuse or neglect; (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 pro tecting and advocating the rights of mentally ill individuals; and (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 onehalf 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 3 (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; and (9) establish a grievance procedure for clients or prospective clients of the system to assure that mentally ill individuals have full access to the services of the system. (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 mentally ill individuals 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 mentally ill individuals 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 So in original. The word "and" probably should not appear. 1988-Subsec. (a)(4)(B). Pub. L. 100-509, § 6(a), inserted "(including an individual who has died or whose whereabouts are unknown)" after "any individual". Subsec. (a)(6). Pub. L. 100-509, § 4(1), substituted "an advisory council" for "a board". Subsec. (a)(7). Pub. L. 100-509, § 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, § 7(c), added pars. (8) and (9). Subsec. (c). Pub. L. 100-509, § 4(2), added subsec. (c). SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 10803, 10806, 10824 of this title. § 10806. Access to records (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 mentally ill individuals 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. (Pub. L. 99-319, title I, § 106, May 23, 1986, 100 Stat. 481; Pub. L. 100-509, § 6(b), Oct. 20, 1988, 102 Stat. 2544.) AMENDMENTS 1988-Subsec. (b)(3). Pub. L. 100-509 added par. (3). SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 10805 of this title. § 10807. Legal actions (a) Prior to instituting any legal action in a Federal or State court on behalf of a mentally ill individual, 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 mentally ill individual. (Pub. L. 99-319, title I, § 107, May 23, 1986, 100 Stat. 482.) PART B-ADMINISTRATIVE PROVISIONS §10821. Applications (a) 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 mentally ill individuals; (2) assurances that such system will have a staff which is trained or being trained to provide advocacy services to mentally ill individuals; (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) Applications submitted under this section shall remain in effect for a 3-year period, and the assurances required under this section shall be for the same 3-year period. (Pub. L. 99-319, title I, § 111, May 23, 1986, 100 Stat. 482; Pub. L. 100-509, § 7(d), Oct. 20, 1988, 102 Stat. 2545.) AMENDMENTS 1988-Pub. L. 100-509 designated existing provisions as subsec. (a) and added subsec. (b). § 10822. Allotment formula and reallotments (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 Trust Territory of the Pacific Islands, or the Virgin Islands, the quotient shall be considered to be one. (2) Notwithstanding paragraph (1) and subject to the availability of appropriations under section 10827 of this title (A) if the total amount appropriated in a fiscal year is at least $13,000,000— (i) 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 be the greater of (I) $140,000; or (II) $125,000 in addition to the amount determined under paragraph (3); and (ii) 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 be the greater of (I) $75,000; or (II) $67,000 in addition to the amount determined under paragraph (3); and (B) if the total amount appropriated in a fiscal year is less than $13,000,000, the amount of the allotment of the eligible system (i) of each of the several States, the District of Columbia, and the Commonwealth of Puerto Rico shall not be less than $125,000 in addition to the amount determined under paragraph (3); and (ii) 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 in addition to the amount determined under paragraph (3). (3) 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. (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. (Pub. L. 99-319, title I, § 112, May 23, 1986, 100 Stat. 483; Pub. L. 100-509, § 7(e), Oct. 20, 1988, 102 Stat. 2545.) AMENDMENTS 7(e)(1), 1988-Subsec. (a)(2). Pub. L. 100-509, 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, § 7(e)(2), added par. (3). § 10823. Payments under allotments 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. (Pub. L. 99-319, title I, § 113, May 23, 1986, 100 Stat. 484.) § 10824. Reports by Secretary (a) The Secretary shall include in each report required under section 6006(c) 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 mentally ill individuals supported with payments from allotments under this subchapter, including (A) a specification of the total number of mentally ill individuals 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 mentally ill individuals 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 mentally ill individuals 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 mentally ill individuals 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. (Pub. L. 99-319, title I, § 114, May 23, 1986, 100 Stat. 484.) § 10825. Technical assistance The Secretary shall use not more than 2 percent of the amounts appropriated under section |