42 U.S.C. § 10821 — Applications

Page 8087 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 10821 1 So in original. Probably should be ‘‘an’’. 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 con- tracts 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 sec- tion 14401 of this title. § 10806. Access to records (a) An eligible system which, pursuant to sec- tion 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), maintain the con- fidentiality 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 pur- suant 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 serv- ices 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 de- nied 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 detri- mental to such individual’s health. If such men- tal health professional determines, based on pro- fessional judgment, that disclosure of such in- formation would not be detrimental to the health of such individual, the system may dis- close 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, conser- vator, or representative does not, within a rea- sonable time after such individual is denied access to information under paragraph (1), se- lect a mental health professional under sub- paragraph (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 sec- tion, section 10805(a)(4) of this title and this sec- tion 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 begin- ning 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 re- ports prepared by an agency charged with inves- tigating reports of incidents of abuse, neglect, and injury occurring at such facility that de- scribe incidents of abuse, neglect, and injury oc- curring at such facility and the steps taken to investigate such incidents, and discharge plan- ning 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) and paragraphs (1) and (2) of subsection (b). (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; Pub. L. 102–173, § 10(2), Nov. 27, 1991, 105 Stat. 1219.) Editorial Notes AMENDMENTS 1991—Subsec. (b)(2)(C). Pub. L. 102–173 substituted ‘‘individuals with mental illness’’ for ‘‘mentally ill in- dividuals’’. 1988—Subsec. (b)(3). Pub. L. 100–509 added par. (3). § 10807. Legal actions (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 administra- tive remedies, the system, agency, or organiza- tion determines that any matter with respect to such individual will not be resolved within a reasonable time, the system, agency, or organi- zation may pursue alternative remedies, includ- ing the initiation of a legal action. (b) Subsection (a) does not apply to any legal action instituted to prevent or eliminate immi- nent serious harm to a 1 individual with mental illness. (Pub. L. 99–319, title I, § 107, May 23, 1986, 100 Stat. 482; Pub. L. 102–173, § 10(1), Nov. 27, 1991, 105 Stat. 1219.) Editorial Notes AMENDMENTS 1991—Pub. L. 102–173 substituted ‘‘individual with mental illness’’ for ‘‘mentally ill individual’’ in sub- secs. (a) and (b). PART B—ADMINISTRATIVE PROVISIONS § 10821. Applications (a) Submission for allotment; contents No allotment may be made under this sub- chapter to an eligible system unless an applica- tion therefor is submitted to the Secretary. Each such application shall contain— (1) assurances that amounts paid to such system from an allotment under this sub- chapter will be used to supplement and not to supplant the level of non-Federal funds avail- able in the State in which such system is es- Page 8088 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 10822 tablished 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 pro- vide advocacy services to individuals with mental illness and to work with family mem- bers of clients served by the system where the individuals with mental illness are minors, le- gally competent and do not object, and legally incompetent and the legal guardians, con- servators, 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 dupli- cative of actions taken on behalf of such indi- vidual by such guardian, conservator, or rep- resentative 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) 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 individ- uals. (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. (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; Pub. L. 102–173, §§ 7, 10(2), Nov. 27, 1991, 105 Stat. 1218, 1219; Pub. L. 102–321, title I, § 163(c)(3)(A), July 10, 1992, 106 Stat. 377.) Editorial Notes 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, § 10(2), substituted ‘‘individuals with mental illness’’ for ‘‘mentally ill in- dividuals’’. Subsec. (a)(2). Pub. L. 102–173, §§ 7(1), 10(2), substituted ‘‘individuals with mental illness’’ for ‘‘mentally ill in- dividuals’’ and inserted before semicolon at end ‘‘and to work with family members of clients served by the sys- tem where the individuals with mental illness are mi- nors, 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, § 7(2), (3) added sub- sec. (b) and redesignated former subsec. (b) as (c). 1988—Pub. L. 100–509 designated existing provisions as subsec. (a) and added subsec. (b). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1992 AMENDMENT Amendment by Pub. L. 102–321 effective Oct. 1, 1992, with provision for programs providing financial assist- ance, see section 801(c), (d) of Pub. L. 102–321, set out as a note under section 236 of this title. § 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 sec- tion 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 Fed- erated 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 ap- propriate 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 sec- tion 10827 of this title for the fiscal year for which the allotment is being made to the amount appropriated under such section for fis- cal year 1995. (D) If the total amount appropriated for a fis- cal year is at least $25,000,000, the Secretary shall make an allotment in accordance with sub- paragraph (A) to the eligible system serving the American Indian consortium. (b)(1) To the extent that all the amounts ap- propriated 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 noti- fied the Secretary that they do not intend to use the full amount of their allotment, the amount which is not so allotted shall be re- allotted among the remaining eligible systems. (2) The amount of an allotment to an eligible system for a fiscal year which the Secretary de- termines will not be required by the system dur- ing 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