42 U.S.C. § 10802 — Definitions

Page 8083 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 10802 1 So in original. Probably should be ‘‘an’’. 2 So in original. 3 See References in Text note below. Subsec. (a)(2) to (4). Pub. L. 102–173, § 3, added par. (2) and redesignated former pars. (2) and (3) as (3) and (4), respectively. Subsec. (b). Pub. L. 102–173, § 10(2), substituted ‘‘indi- viduals with mental illness’’ for ‘‘mentally ill individ- uals’’ in three places. Statutory Notes and Related Subsidiaries SHORT TITLE OF 1991 AMENDMENT Pub. L. 102–173, § 1, Nov. 27, 1991, 105 Stat. 1217, pro- vided that: ‘‘This Act [amending this section and sec- tions 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, § 1, Oct. 20, 1988, 102 Stat. 2543, pro- vided that: ‘‘This Act [amending sections 10802, 10804 to 10806, 10821, 10822, 10825, and 10827 of this title and en- acting a provision set out as a note under section 10827 of this title] may be cited as the ‘Protection and Advo- cacy for Mentally Ill Individuals Amendments Act of 1988’.’’ SHORT TITLE Pub. L. 99–319, § 1, May 23, 1986, 100 Stat. 478, as amended by Pub. L. 106–310, div. B, title XXXII, § 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 Pub. L. 99–319, title IV, § 402, May 23, 1986, 100 Stat. 490, 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)].’’ § 10802. Definitions For purposes of this subchapter: (1) The term ‘‘abuse’’ means any act or fail- ure to act by an employee of a facility ren- dering care or treatment which was per- formed, 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 indi- vidual with mental illness; (B) the striking of a 1 individual with men- tal 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 develop- mental disabilities under subtitle C of the De- velopmental 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 ill- ness’’ 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 resi- dent are unknown; (II) who is in the process of being admitted to a facility rendering care or treatment, in- cluding persons being transported to such a facility; or’’; 2 (III) who is involuntarily confined in a mu- nicipal detention facility for reasons other than serving a sentence resulting from con- viction for a criminal offense; or (ii) who satisfies the requirements of sub- paragraph (A) and lives in a community set- ting, 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 ill- ness, or the failure to provide a safe environ- ment for a 1 individual with mental illness, in- cluding the failure to maintain adequate num- bers of appropriately trained staff. (6) The term ‘‘Secretary’’ means the Sec- retary of Health and Human Services. (7) The term ‘‘State’’ means each of the sev- eral States, the District of Columbia, the Commonwealth of Puerto Rico, Guam, the Commonwealth of the Northern Mariana Is- lands, 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.). (Pub. L. 99–319, title I, § 102, May 23, 1986, 100 Stat. 478; Pub. L. 100–509, § 3, Oct. 20, 1988, 102 Stat. 2543; Pub. L. 102–173, §§ 4, 10(1), Nov. 27, 1991, 105 Stat. 1217, 1219; Pub. L. 106–310, div. B, title XXXII, § 3206(b), Oct. 17, 2000, 114 Stat. 1194; Pub. L. 106–402, title IV, § 401(b)(13)(A), Oct. 30, 2000, 114 Stat. 1739.) Editorial Notes REFERENCES IN TEXT The Developmental Disabilities Assistance and Bill of Rights Act of 2000, referred to in par. (2), is Pub. L. Page 8084 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 10803 1 So in original. The comma probably should not appear. 2 See References in Text note below. 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 (§ 15041 et seq.) of sub- chapter I of chapter 144 of this title. For complete clas- sification 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, § 2, Oct. 19, 1984, 98 Stat. 2662, which was repealed by Pub. L. 106–402, title IV, § 401(a), Oct. 30, 2000, 114 Stat. 1737. Part C of the Act was classified generally to subchapter III (§ 6041 et seq.) of chapter 75 of this title. Provisions similar to former part C of the Act are contained in subtitle C of title I of the Developmental Disabilities Assistance and Bill of Rights Act of 2000, Pub. L. 106–402, which is classified generally to part C (§ 15041 et seq.) of subchapter I of chapter 144 of this title. 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, § 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, § 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, § 3206(b)(2), added par. (8). 1991—Par. (1). Pub. L. 102–173, § 10(1), substituted ‘‘in- dividual with mental illness’’ for ‘‘mentally ill indi- vidual’’ wherever appearing. Pars. (3) to (7). Pub. L. 102–173 added par. (3), redesig- nated 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, § 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 where- abouts 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’’. Executive Documents TERMINATION OF TRUST TERRITORY OF THE PACIFIC ISLANDS For termination of Trust Territory of the Pacific Is- lands, see note set out preceding section 1681 of Title 48, Territories and Insular Possessions. § 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 indi- viduals with mental illness; and (B) investigate incidents of abuse and ne- glect 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. (Pub. L. 99–319, title I, § 103, May 23, 1986, 100 Stat. 479; Pub. L. 102–173, § 10(2), Nov. 27, 1991, 105 Stat. 1219.) Editorial Notes AMENDMENTS 1991—Par. (2). Pub. L. 102–173 substituted ‘‘individuals with mental illness’’ for ‘‘mentally ill individuals’’ in two places. § 10804. Use of allotments (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 serv- ices (other than advocacy services) to individ- uals 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 fam- ily 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 sub- chapter for any fiscal year for the costs of pro- viding technical assistance and training to carry out this subchapter. (c) Representation of individuals with mental ill- ness An eligible system may use its allotment under this subchapter to provide representation to individuals with mental illness in Federal fa- cilities who request representation by the eligi- ble system. Representatives of such individuals from such system shall be accorded all the rights and authority accorded to other rep- resentatives of residents of such facilities pursu- ant 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) 2 of this title shall apply, and thus an eligible sys- tem may use its allotment under this sub- chapter to provide representation to such indi- viduals, 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 men-