42 U.S.C. § 15043 — System required

Page 8682 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 15043 1 See References in Text note below. change indicates an increase), the Secretary shall increase each of the minimum allot- ments described in subparagraphs (A) and (B) of paragraph (2). The Secretary shall increase each minimum allotment by an amount that bears the same ratio to the amount of such minimum allotment (including any increases in such minimum allotment under this para- graph (or a corresponding provision) for prior fiscal years) as the amount that is equal to the difference between— (A) the total amount appropriated under section 15045 of this title for the fiscal year for which the increase in the minimum al- lotment is being made; minus (B) the total amount appropriated under section 15045 of this title (or a corresponding provision) for the immediately preceding fis- cal year, bears to the total amount appropriated under section 15045 of this title (or a corresponding provision) for such preceding fiscal year. (5) Monitoring the administration of the sys- tem In a State in which the system is housed in a State agency, the State may use not more than 5 percent of any allotment under this subsection for the costs of monitoring the ad- ministration of the system required under sec- tion 15043(a) of this title. (6) Technical assistance and American Indian consortium In any case in which the total amount ap- propriated under section 15045 of this title for a fiscal year is more than $24,500,000, the Sec- retary shall— (A) use not more than 2 percent of the amount appropriated to provide technical assistance to eligible systems with respect to activities carried out under this part (consistent with requests by such systems for such assistance for the year); and (B) provide a grant in accordance with sec- tion 15043(b) of this title, and in an amount described in paragraph (2)(A)(i), to an Amer- ican Indian consortium to provide protec- tion and advocacy services. (b) Payment to systems Notwithstanding any other provision of law, the Secretary shall pay directly to any system in a State that complies with the provisions of this part the amount of the allotment made for the State under this section, unless the system specifies otherwise. (c) Unobligated funds Any amount paid to a system under this part 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 pur- poses for which such amount was paid. (Pub. L. 106–402, title I, § 142, Oct. 30, 2000, 114 Stat. 1712.) § 15043. System required (a) System required In order for a State to receive an allotment under part B or this part— (1) the State shall have in effect a system to protect and advocate the rights of individuals with developmental disabilities; (2) such system shall— (A) have the authority to— (i) pursue legal, administrative, and other appropriate remedies or approaches to ensure the protection of, and advocacy for, the rights of such individuals within the State who are or who may be eligible for treatment, services, or habilitation, or who are being considered for a change in living arrangements, with particular at- tention to members of ethnic and racial minority groups; and (ii) provide information on and referral to programs and services addressing the needs of individuals with developmental disabilities; (B) have the authority to investigate inci- dents of abuse and neglect of individuals with developmental disabilities if the inci- dents are reported to the system or if there is probable cause to believe that the inci- dents occurred; (C) on an annual basis, develop, submit to the Secretary, and take action with regard to goals (each of which is related to 1 or more areas of emphasis) and priorities, de- veloped through data driven strategic plan- ning, for the system’s activities; (D) on an annual basis, provide to the pub- lic, including individuals with develop- mental disabilities attributable to either physical impairment, mental impairment, or a combination of physical and mental im- pairment, and their representatives, and as appropriate, non-State agency representa- tives of the State Councils on Develop- mental Disabilities, and Centers, in the State, an opportunity to comment on— (i) the goals and priorities established by the system and the rationale for the estab- lishment of such goals; and (ii) the activities of the system, includ- ing the coordination of services with the entities carrying out advocacy programs under the Rehabilitation Act of 1973 (29 U.S.C. 701 et seq.), the Older Americans Act of 1965 (42 U.S.C. 3001 et seq.), and the Protection and Advocacy for Mentally Ill Individuals Act of 1986 1 (42 U.S.C. 10801 et seq.), and with entities carrying out other related programs, including the parent training and information centers funded under the Individuals with Disabilities Education Act (20 U.S.C. 1400 et seq.), and activities authorized under section 3003 or 3004 of title 29; (E) establish a grievance procedure for cli- ents or prospective clients of the system to ensure that individuals with developmental disabilities have full access to services of the system; (F) not be administered by the State Coun- cil on Developmental Disabilities; (G) be independent of any agency that pro- vides treatment, services, or habilitation to individuals with developmental disabilities; Page 8683 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 15043 (H) have access at reasonable times to any individual with a developmental disability in a location in which services, supports, and other assistance are provided to such an in- dividual, in order to carry out the purpose of this part; (I) have access to all records of— (i) any individual with a developmental disability who is a client of the system if such individual, or the legal guardian, con- servator, or other legal representative of such individual, has authorized the system to have such access; (ii) any individual with a developmental disability, in a situation in which— (I) the individual, by reason of such in- dividual’s mental or physical condition, is unable to authorize the system to have such access; (II) the individual does not have a legal guardian, conservator, or other legal representative, or the legal guardian of the individual is the State; and (III) a complaint has been received by the system about the individual with re- gard to the status or treatment of the in- dividual or, as a result of monitoring or other activities, there is probable cause to believe that such individual has been subject to abuse or neglect; and (iii) any individual with a developmental disability, in a situation in which— (I) the individual has a legal guardian, conservator, or other legal representa- tive; (II) a complaint has been received by the system about the individual with re- gard to the status or treatment of the in- dividual or, as a result of monitoring or other activities, there is probable cause to believe that such individual has been subject to abuse or neglect; (III) such representative has been con- tacted by such system, upon receipt of the name and address of such representa- tive; (IV) such system has offered assistance to such representative to resolve the sit- uation; and (V) such representative has failed or refused to act on behalf of the indi- vidual; (J)(i) have access to the records of individ- uals described in subparagraphs (B) and (I), and other records that are relevant to con- ducting an investigation, under the cir- cumstances described in those subpara- graphs, not later than 3 business days after the system makes a written request for the records involved; and (ii) have immediate access, not later than 24 hours after the system makes such a re- quest, to the records without consent from another party, in a situation in which serv- ices, supports, and other assistance are pro- vided to an individual with a developmental disability— (I) if the system determines there is probable cause to believe that the health or safety of the individual is in serious and immediate jeopardy; or (II) in any case of death of an individual with a developmental disability; (K) hire and maintain sufficient numbers and types of staff (qualified by training and experience) to carry out such system’s func- tions, except that the State involved shall not apply hiring freezes, reductions in force, prohibitions on travel, or other policies to the staff of the system, to the extent that such policies would impact the staff or func- tions of the system funded with Federal funds or would prevent the system from car- rying out the functions of the system under this part; (L) have the authority to educate policy- makers; and (M) provide assurances to the Secretary that funds allotted to the State under sec- tion 15042 of this title will be used to supple- ment, and not supplant, the non-Federal funds that would otherwise be made avail- able for the purposes for which the allotted funds are provided; (3) to the extent that information is avail- able, the State shall provide to the system— (A) a copy of each independent review, pur- suant to section 1396a(a)(30)(C) of this title, of an Intermediate Care Facility (Mental Re- tardation) within the State, not later than 30 days after the availability of such a re- view; and (B) information about the adequacy of health care and other services, supports, and assistance that individuals with develop- mental disabilities who are served through home and community-based waivers (author- ized under section 1396n(c) of this title) re- ceive; and (4) the agency implementing the system shall not be redesignated unless— (A) there is good cause for the redesigna- tion; (B) the State has given the agency notice of the intention to make such redesignation, including notice regarding the good cause for such redesignation, and given the agency an opportunity to respond to the assertion that good cause has been shown; (C) the State has given timely notice and an opportunity for public comment in an ac- cessible format to individuals with develop- mental disabilities or their representatives; and (D) the system has an opportunity to ap- peal the redesignation to the Secretary, on the basis that the redesignation was not for good cause. (b) American Indian consortium Upon application to the Secretary, an Amer- ican Indian consortium established to provide protection and advocacy services under this part, shall receive funding pursuant to section 15042(a)(6) of this title to provide the services. Such consortium shall be considered to be a sys- tem for purposes of this part and shall coordi- nate the services with other systems serving the same geographic area. The tribal council that designates the consortium shall carry out the responsibilities and exercise the authorities Page 8684 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 15044 specified for a State in this part, with regard to the consortium. (c) Record In this section, the term ‘‘record’’ includes— (1) a report prepared or received by any staff at any location at which services, supports, or other assistance is provided to individuals with developmental disabilities; (2) a report prepared by an agency or staff person charged with investigating reports of incidents of abuse or neglect, injury, or death occurring at such location, that describes such incidents and the steps taken to investigate such incidents; and (3) a discharge planning record. (Pub. L. 106–402, title I, § 143, Oct. 30, 2000, 114 Stat. 1714; Pub. L. 108–364, § 3(a)(3), Oct. 25, 2004, 118 Stat. 1736.) Editorial Notes REFERENCES IN TEXT The Rehabilitation Act of 1973, referred to in subsec. (a)(2)(D)(ii), is Pub. L. 93–112, Sept. 26, 1973, 87 Stat. 355, which is classified generally to chapter 16 (§ 701 et seq.) of Title 29, Labor. For complete classification of this Act to the Code, see Short Title note set out under sec- tion 701 of Title 29 and Tables. The Older Americans Act of 1965, referred to in sub- sec. (a)(2)(D)(ii), is Pub. L. 89–73, July 14, 1965, 79 Stat. 218, which is classified generally to chapter 35 (§ 3001 et seq.) of this title. For complete classification of this Act to the Code, see Short Title note set out under sec- tion 3001 of this title and Tables. The Protection and Advocacy for Mentally Ill Indi- viduals Act of 1986, referred to in subsec. (a)(2)(D)(ii), was Pub. L. 99–319, May 23, 1986, 100 Stat. 478. Pub. L. 99–319 was renamed the Protection and Advocacy for In- dividuals with Mental Illness Act by Pub. L. 106–310, div. B, title XXXII, § 3206(a), Oct. 17, 2000, 114 Stat. 1193, and is classified generally to chapter 114 (§ 10801 et seq.) of this title. For complete classification of this Act to the Code, see Short Title note set out under section 10801 of this title and Tables. The Individuals with Disabilities Education Act, re- ferred to in subsec. (a)(2)(D)(ii), is title VI of Pub. L. 91–230, Apr. 13, 1970, 84 Stat. 175, which is classified gen- erally to chapter 33 (§ 1400 et seq.) of Title 20, Edu- cation. For complete classification of this Act to the Code, see section 1400 of Title 20 and Tables. AMENDMENTS 2004—Subsec. (a)(2)(D)(ii). Pub. L. 108–364 substituted ‘‘section 3003 or 3004 of title 29’’ for ‘‘section 3011 or 3012 of title 29’’. § 15044. Administration (a) Governing board In a State in which the system described in section 15043 of this title is organized as a pri- vate nonprofit entity with a multimember gov- erning 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, except that— (1)(A) the governing board shall be composed of members who broadly represent or are knowledgeable about the needs of the individ- uals served by the system; (B) a majority of the members of the board shall be— (i) individuals with disabilities, including individuals with developmental disabilities, who are eligible for services, or have re- ceived or are receiving services through the system; or (ii) parents, family members, guardians, advocates, or authorized representatives of individuals referred to in clause (i); and (C) the board may include a representative of the State Council on Developmental Dis- abilities, the Centers in the State, and the self-advocacy organization described in sec- tion 15024(c)(4)(A)(ii)(I) of this title; (2) not more than 1⁄3 of the members of the governing board may be appointed by the chief executive officer of the State involved, in the case of any State in which such officer has the authority to appoint members of the board; (3) the membership of the governing board shall be subject to term limits set by the sys- tem to ensure rotating membership; (4) any vacancy in the board shall be filled not later than 60 days after the date on which the vacancy occurs; and (5) in a State in which the system is orga- nized as a public system without a multi- member governing or advisory board, the sys- tem shall establish an advisory council— (A) that shall advise the system on poli- cies and priorities to be carried out in pro- tecting and advocating the rights of individ- uals with developmental disabilities; and (B) on which a majority of the members shall be— (i) individuals with developmental dis- abilities who are eligible for services, or have received or are receiving services, through the system; or (ii) parents, family members, guardians, advocates, or authorized representatives of individuals referred to in clause (i). (b) Legal action (1) In general Nothing in this subchapter shall preclude a system from bringing a suit on behalf of indi- viduals with developmental disabilities against a State, or an agency or instrumen- tality of a State. (2) Use of amounts from judgment An amount received pursuant to a suit de- scribed in paragraph (1) through a court judg- ment may only be used by the system to fur- ther the purpose of this part and shall not be used to augment payments to legal contrac- tors or to award personal bonuses. (3) Limitation The system shall use assistance provided under this part in a manner consistent with section 14404 of this title. (c) Disclosure of information For purposes of any periodic audit, report, or evaluation required under this part, the Sec- retary shall not require an entity carrying out a program to disclose the identity of, or any other personally identifiable information related to, any individual requesting assistance under such program. (d) Public notice of Federal onsite review The Secretary shall provide advance public no- tice of any Federal programmatic or administra-