System requirements

42 U.S.C. § 10805

• Title: 42 — The Public Health and Welfare
• Chapter: SUBCHAPTER I—PROTECTION AND ADVOCACY SYSTEMS
• Part: A

Text

(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);
(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, and make publicly available, 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; 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.

History

(Pub. L. 99–319, title I, §105, May 23, 1986, 100 Stat. 480; Pub. L. 100–509, §§4–6(a), 7(c), Oct. 20, 1988, 102 Stat. 2543–2545; Pub. L. 102–173, §§6, 10, Nov. 27, 1991, 105 Stat. 1218, 1219; Pub. L. 105–12, §9(m), Apr. 30, 1997, 111 Stat. 28; Pub. L. 114–255, div. B, title VI, §6022(a), Dec. 13, 2016, 130 Stat. 1216.)

Editorial Notes

Editorial Notes

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. Titles XVIII and XIX of the Social Security Act are classified generally to subchapters XVIII (§1395 et seq.) and XIX (§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
2016—Subsec. (a)(7). Pub. L. 114–255 substituted "is located, and make publicly available, a report" for "is located a report".
1997—Subsec. (a)(10). Pub. L. 105–12 added par. (10).
1991—Subsec. (a). Pub. L. 102–173, §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, §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, §6(b), substituted "60 percent" for "one-half" in subpar. (B) and added subpar. (C).
Subsec. (a)(9). Pub. L. 102–173, §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".
Subsec. (b). Pub. L. 102–173, §10(2), substituted "individuals with mental illness" for "mentally ill individuals".
Subsec. (c)(1). Pub. L. 102–173, §§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, §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).

Statutory Notes and Related Subsidiaries

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.