42 U.S.C. § 10805 — System requirements

Page 8085 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 10805 1 So in original. Probably should be ‘‘an’’. tal illness as defined in subparagraphs (A) and (B)(i) of section 10802(4) of this title. (Pub. L. 99–319, title I, § 104, May 23, 1986, 100 Stat. 479; Pub. L. 100–509, § 7(a), (b)(1), Oct. 20, 1988, 102 Stat. 2544; Pub. L. 102–173, §§ 5, 10(2), Nov. 27, 1991, 105 Stat. 1217, 1219; Pub. L. 106–310, div. B, title XXXII, § 3206(c), Oct. 17, 2000, 114 Stat. 1194.) Editorial Notes REFERENCES IN TEXT Section 10802(4)(B)(iii) of this title, referred to in sub- sec. (d), was redesignated section 10802(4)(B)(i)(III) of this title by Pub. L. 106–310, div. B, title XXXII, § 3206(b)(1)(B)(i), (ii), Oct. 17, 2000, 114 Stat. 1194. AMENDMENTS 2000—Subsec. (d). Pub. L. 106–310 added subsec. (d). 1991—Subsec. (a). Pub. L. 102–173, § 10(2), substituted ‘‘individuals with mental illness’’ for ‘‘mentally ill in- dividuals’’ in three places. Subsec. (c). Pub. L. 102–173, § 5, added subsec. (c). 1988—Subsec. (a)(2). Pub. L. 100–509, § 7(a), substituted ‘‘including, in particular, groups run by individuals who have received or are receiving mental health serv- ices, or the family members of such individuals, which’’ for ‘‘which, on May 23, 1986’’. Subsec. (b)(2). Pub. L. 100–509, § 7(b)(1), substituted ‘‘10’’ for ‘‘5’’. § 10805. System requirements (a) Authority; independent status; access to fa- cilities 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 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; (B) pursue administrative, legal, and other appropriate remedies to ensure the protec- tion 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 pro- viding 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 guard- ian, conservator, or other legal representa- tive of such individual, has authorized the system to have such access; (B) any individual (including an individual who has died or whose whereabouts are un- known)— (i) who by reason of the mental or phys- ical condition of such individual is unable to authorize the system to have such ac- cess; (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 indi- vidual has been subject to abuse or ne- glect; 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 safe- ty of the individual is in serious and imme- diate jeopardy, whenever— (i) such representative has been con- tacted 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 situa- tion; and (iii) such representative has failed or re- fused 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 fur- nishing of the information required by sub- section (b); (6) establish an advisory council— (A) which will advise the system on poli- cies and priorities to be carried out in pro- tecting and advocating the rights of individ- uals 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 receiv- ing mental health services, and family mem- bers of such individuals, and at least 60 per- cent the membership of which shall be com- prised 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 sys- tem is located, and make publicly available, a report describing the activities, accomplish- ments, and expenditures of the system during Page 8086 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 10805 the most recently completed fiscal year, in- cluding 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 prior- ities established by, and the activities of, the system; (9) establish a grievance procedure for cli- ents or prospective clients of the system to as- sure that individuals with mental illness have full access to the services of the system and for individuals who have received or are re- ceiving mental health services, family mem- bers 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 re- spect to any facility rendering care or treat- ment 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 Oc- tober 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 or- ganized as a private non-profit entity, mem- bers who broadly represent or are knowledge- able 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 ‘‘mem- bers who broadly represent or are knowledgeable about the needs of the clients served by the sys- tem’’ shall be construed to include individuals who have received or are receiving mental health services and family members of such in- dividuals. (2) The governing authority established under paragraph (1) shall— (A) be responsible for the planning, design, implementation, and functioning of the sys- tem; and (B) consistent with subparagraph (A), jointly develop the annual priorities of the system with the advisory council. (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 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 lo- cated, and make publicly available, a report’’ for ‘‘is lo- cated a report’’. 1997—Subsec. (a)(10). Pub. L. 105–12 added par. (10). 1991—Subsec. (a). Pub. L. 102–173, § 10, substituted ‘‘in- dividual with mental illness’’ for ‘‘mentally ill indi- vidual’’ and ‘‘individuals with mental illness’’ for ‘‘mentally ill individuals’’ wherever appearing. Subsec. (a)(4). Pub. L. 102–173, § 6(a), inserted ‘‘as a re- sult 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 sub- par. (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 representa- tives 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 ‘‘indi- viduals with mental illness’’ for ‘‘mentally ill individ- uals’’. Subsec. (c)(1). Pub. L. 102–173, §§ 6(d), 10(2), substituted ‘‘individuals with mental illness’’ for ‘‘mentally ill in- dividuals’’ 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 con- strued 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 where- abouts 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 as- sessment 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 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-