§ 10711. Audits (a) Time and place of audits; standards; availability of books, accounts, facilities, etc., to auditors; filing of report and availability for public inspection (1) The accounts of the Institute shall be audited annually. Such audits shall be conducted in accordance with generally accepted auditing standards by independent certified public accountants who are certified by a regulatory authority of the jurisdiction in which the audit is undertaken. (2) The audits shall be conducted at the place or places where the accounts of the Institute are normally kept. All books, accounts, financial records, reports, files, and other papers or property belonging to or in use by the Institute and necessary to facilitate the audits shall be made available to the person or persons conducting the audits. The full facilities for verifying transactions with the balances and securities held by depositories, fiscal agents, and custodians shall be afforded to any such person. (3) The report of the annual audit shall be filed with the General Accounting Office and shall be available for public inspection during business hours at the principal office of the Institute. (b) Additional audits; requirements; reports and recommendations to Congress and Attorney General (1) In addition to the annual audit, the financial transactions of the Institute for any fiscal year during which Federal funds are available to finance any portion of its operations may be audited by the General Accounting Office in accordance with such rules and regulations as may be prescribed by the Comptroller General of the United States. (2) Any such audit shall be conducted at the place or places where accounts of the Institute are normally kept. The representatives of the General Accounting Office shall have access to all books, accounts, financial records, reports, files, and other papers or property belonging to or in use by the Institute and necessary to facilitate the audit. The full facilities for verifying transactions with the balances and securities held by depositories, fiscal agents, and custodians shall be afforded to such representatives. All such books, accounts, financial records, reports, files, and other papers or property of the Institute shall remain in the possession and custody of the Institute throughout the period beginning on the date such possession or custody commences and ending three years after such date, but the General Accounting Office may require the retention of such books, accounts, financial records, reports, files, and other papers or property for a longer period under section 3523(c) of title 31. (3) A report of such audit shall be made by the Comptroller General to the Congress and to the Attorney General, together with such recommendations with respect thereto as the Comptroller General deems advisable. (c) Annual audits by Institute or recipients; reports; submission of copies to Comptroller General; inspection of books, accounts, etc.; availability of audit reports for public inspection (1) The Institute shall conduct, or require each recipient to provide for, an annual fiscal audit. The report of each such audit shall be maintained for a period of at least five years at the principal office of the Institute. (2) The Institute shall submit to the Comptroller General of the United States copies of such reports, and the Comptroller General may, in addition, inspect the books, accounts, financial records, files, and other papers or property belonging to or in use by such grantee, contractor, person, or entity, which relate to the disposition or use of funds received from the Institute. Such audit reports shall be available for public inspection during regular business hours, at the principal office of the Institute. (Pub. L. 98-620, title II, § 212, Nov. 8, 1984, 98 Stat. 3345.) § 10712. Report by Attorney General On October 1, 1987, the Attorney General, in consultation with the Federal Judicial Center, shall transmit to the Committees on the Judiciary of the Senate and the House of Representatives a report on the effectiveness of the Institute in carrying out the duties specified in section 10702(b) of this title. Such report shall include an assessment of the cost effectiveness of the program as a whole and, to the extent practicable, of individual grants, an assessment of whether the restrictions and limitations specified in sections 10706 and 10707 of this title have been respected, and such recommendations as the Attorney General, in consultation with the Federal Judicial Center, deems appropriate. (Pub. L. 98-620, title II, § 213, Nov. 8, 1984, 98 Stat. 3346.) § 10713. Authorization of appropriations There are authorized to be appropriated to carry out of the purposes this chapter $15,000,000 for each of the fiscal years 1989 and 1990. Amounts appropriated under this section may remain available until expended. (Pub. L. 98-620, title II, § 215, Nov. 8, 1984, 98 Stat. 3346; Pub. L. 100-690, title VII, § 7321(a), Nov. 18, 1988, 102 Stat. 4466; Pub. L. 100-702, title VI, § 607, Nov. 19, 1988, 102 Stat. 4654.) AMENDMENTS 1988-Pub. L. 100-702 amended section generally, substituting appropriations authorization of $15,000,000 for fiscal years 1989 and 1990, such amounts to remain available until expended for authorization of $15,000,000 for fiscal years 1989, 1990, 1991, and 1992. Pub. L. 100-690 amended section generally, substituting appropriations authorization of $15,000,000 for fiscal years 1989 through 1992 for authorization of $13,000,000 for fiscal year 1986 and $15,000,000 for fiscal years 1987 and 1988. § 10801. Congressional findings and statement of purpose (a) The Congress finds that (1) mentally ill individuals are vulnerable to abuse and serious injury; (2) mentally ill individuals are subject to neglect, including lack of treatment, adequate nutrition, clothing, health care, and adequate discharge planning; and (3) State systems for monitoring compliance with respect to the rights of mentally ill individuals vary widely and are frequently inadequate. (b) The purposes of this chapter are— (1) to ensure that the rights of mentally ill individuals are protected; and (2) to assist States to establish and operate a protection and advocacy system for mentally ill individuals which will— (A) protect and advocate the rights of such individuals through activities to ensure the enforcement of the Constitution and Federal and State statutes; and (B) investigate incidents of abuse and neglect of mentally ill individuals 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, § 101, May 23, 1986, 100 Stat. 478.) REFERENCES IN TEXT This chapter, referred to in subsec. (b), was in the original "this Act", meaning Pub. L. 99-319, May 23, 1986, 100 Stat. 478, known as the Protection and Advocacy for Mentally Ill Individuals Act of 1986, which enacted this chapter and section 247a of this title. For complete classification of this Act to the Code, see Short Title note below and Tables. SHORT TITLE OF 1988 AMENDMENT Pub. L. 100–509, § 1, Oct. 20, 1988, 102 Stat. 2543, provided that: "This Act [amending sections 10802, 10804 to 10806, 10821, 10822, 10825, and 10827 of this title and enacting a provision set out as a note under section 10827 of this title] may be cited as the 'Protection and Advocacy for Mentally Ill Individuals Amendments Act of 1988'." SHORT TITLE Section 1 of Pub. L. 99-319 provided: "That this Act [enacting this chapter and section 247a of this title and enacting a provision set out below] may be cited as the 'Protection and Advocacy for Mentally Ill Individuals Act of 1986'." SUPERSEDURE OF BALANCED BUDGET PROVISIONS Section 402 of Pub. L. 99-319 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 failure to act by an employee of a facility rendering care or treatment which was performed, or which was failed to be performed, knowingly, recklessly, or intentionally, and which caused, or may have caused, injury or death to a mentally ill individual, and includes acts such as (A) the rape or sexual assault of a mentally ill individual; (B) the striking of a mentally ill individual; (C) the use of excessive force when placing a mentally ill individual in bodily restraints; and (D) the use of bodily or chemical restraints on a mentally ill individual 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 developmental disabilities under part C of the Developmental Disabilities Assistance and Bill of Rights Act [42 U.S.C. 6041 et seq.). (3) The term "mentally ill individual" means 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) who is an inpatient or resident in a facility rendering care or treatment, even if the whereabouts of such inpatient or resident are unknown; (ii) who is in the process of being admitted to a facility rendering care or treatment, including persons being transported to such a facility; or"; 1 (iii) who is involuntarily confined in a municipal detention facility for reasons other than serving a sentence resulting from conviction for a criminal offense. (4) 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 mentally ill individual or which placed a mentally ill individual 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 mentally ill individual, the failure to provide adequate nutrition, clothing, or health care to a mentally ill individual, or the failure to provide a safe environment for a mentally ill individual, including the failure to maintain adequate numbers of appropriately trained staff. (5) The term "Secretary" means the Secretary of Health and Human Services. (6) The term "State" means each of the several States, the District of Columbia, the Commonwealth of Puerto Rico, Guam, the Commonwealth of the Northern Mariana Islands, American Samoa, the Virgin Islands, and the Trust Territory of the Pacific Islands. (Pub. L. 99-319, title I, § 102, May 23, 1986, 100 Stat. 478; Pub. L. 100-509, § 3, Oct. 20, 1988, 102 Stat. 2543.) REFERENCES IN TEXT The Developmental Disabilities Assistance and Bill of Rights Act, referred to in par. (2), is title I of Pub. L. 88-164, as added by Pub. L. 98-527, § 2, Oct. 19, 1984, 98 Stat. 2662, as amended. Part C of the Developmental Disabilities Assistance and Bill of Rights Act is classified generally to subchapter III (§ 6041 et seq.) of chapter 75 of this title. For complete classification of this Act to the Code, see Short Title note set out under section 6000 of this title and Tables. AMENDMENTS 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 whereabouts 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”. SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 10851 of this title. So in original. § 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 mentally ill individuals; and (B) investigate incidents of abuse and neglect of mentally ill individuals 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.) SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 10805, 10822 of this title. 8 10804. Use of allotments (a)(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 services (other than advocacy services) to mentally ill individuals; and (B) such an agency or organization shall have the capacity to protect and advocate the rights of mentally ill individuals. (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 family members of such individuals, which,2 provide protection or advocacy services to mentally ill individuals. (b)(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 subchapter for any fiscal year for the costs of providing technical assistance and training to carry out this subchapter. (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.) AMENDMENTS 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 services, 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". * So in original. The comma probably should not appear. SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 10807, 10821 of this title. § 10805. System requirements (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 mentally ill individuals shall (1) have the authority to— (A) investigate incidents of abuse and neglect of mentally ill individuals 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 mentally ill individuals 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 mentally ill individual; and but only with respect to matters which (2) be independent of any agency in the State which provides treatment or services (other than advocacy services) to mentally ill individuals; (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; and (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 there is probable cause to believe that such individual has been subject to abuse or neglect; (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) of this section; (6) establish an advisory council (A) which will advise the system on policies and priorities to be carried out in pro tecting and advocating the rights of mentally ill individuals; and (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 onehalf 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 3 (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 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; and (9) establish a grievance procedure for clients or prospective clients of the system to assure that mentally ill individuals have full access to the services of the system. (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 mentally ill individuals 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 mentally ill individuals 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 So in original. The word "and" probably should not appear. 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). SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 10803, 10806, 10824 of this title. § 10806. Access to records (a) An eligible system which, pursuant to section 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) of this section, maintain the confidentiality 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 pursuant 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 services 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 denied 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 detrimental to such individual's health. If such mental health professional determines, based on professional judgment, that disclosure of such information would not be detrimental to the health of such individual, the system may disclose 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, conservator, or representative does not, within a reasonable time after such individual is denied access to information under paragraph (1), select a mental health professional under subparagraph (A) to review such information. (C) If the laws of a State prohibit an eligible system from obtaining access to the records of mentally ill individuals in accordance with section 10805(a)(4) of this title and this section, section 10805(a)(4) of this title and this section 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 beginning 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 reports prepared by an agency charged with investigating reports of incidents of abuse, neglect, and injury occurring at such facility that describe incidents of abuse, neglect, and injury occurring at such facility and the steps taken to investigate such incidents, and discharge planning 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) of this section and paragraphs (1) and (2) of subsection (b) of this section. (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.) AMENDMENTS 1988-Subsec. (b)(3). Pub. L. 100-509 added par. (3). SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 10805 of this title. § 10807. Legal actions (a) Prior to instituting any legal action in a Federal or State court on behalf of a mentally ill individual, an eligible system, or a State agency or nonprofit organization which entered |