
From the U.S. Code Online via GPO Access
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[Laws in effect as of January 23, 2000]
[Document not affected by Public Laws enacted between
  January 23, 2000 and December 4, 2001]
[CITE: 42USC10805]

 
                 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
 
Sec. 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 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
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    \1\ So in original. Probably should be ``an''.
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                (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.

(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.)

                       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.


                               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.

                  Section Referred to in Other Sections

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