Volume 100 · 478
Public Law 99–319
To provide for protection and advocacy for mentally ill individuals, and for other purposes.
Approved May 23, 1986
Statutory text
An Act
To provide for protection and advocacy for mentally ill individuals, and for other purposes.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
That this Act may be cited as the “Protection and Advocacy for Mentally Ill Individuals Act of 1986”.
TITLE I— PROTECTION AND ADVOCACY SYSTEMS
Part A— Establishment of Systems
Sec. 101. findings and purpose
The Congress finds that—
mentally ill individuals are vulnerable to abuse and serious injury;
mentally ill individuals are subject to neglect, including lack of treatment, adequate nutrition, clothing, health care, and adequate discharge planning; and
State systems for monitoring compliance with respect to the rights of mentally ill individuals vary widely and are frequently inadequate.
The purposes of this Act are—
to ensure that the rights of mentally ill individuals are protected; and
to assist States to establish and operate a protection and advocacy system for mentally ill individuals which will—
protect and advocate the rights of such individuals through activities to ensure the enforcement of the Constitution and Federal and State statutes; and
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.
Sec. 102. definitions
For purposes of this title:
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 to a mentally ill individual, and includes acts such as—
the rape or sexual assault of a mentally ill individual;
the striking of a mentally ill individual;
the use of excessive force when placing a mentally ill individual in bodily restraints; and
the use of bodily or chemical restraints on a mentally ill individual which is not in compliance with Federal and State laws and regulations.
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.
The term “mentally ill individual” means an individual—
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
who is an inpatient or resident in a facility rendering care or treatment.
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 to a mentally ill individual or which placed a mentally ill individual at risk of injury, 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.
The term ‘Secretary’ means the Secretary of Health and Human Services.
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.
Sec. 103. allotments
The Secretary shall make allotments under this title to
eligible systems to establish and administer systems—
which meet the requirements of section 105; and
which are designed to—
protect and advocate the rights of mentally ill individuals; and
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.
Sec. 104. use of allotments
An eligible system may use its allotment under this
Contracts.
State and local governments.
title 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—
such an agency shall be independent of any agency which provides treatment or services (other than advocacy services) to mentally ill individuals; and
such an agency or organization shall have the capacity to protect and advocate the rights of mentally ill individuals.
In carrying out paragraph (1), an eligible system should consider entering into contracts with organizations which, on the date of enactment of this Act, provide protection or advocacy services to mentally ill individuals.
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 title in any fiscal year for administrative expenses.
An eligible system may not use more than 5 percent of any allotment under this title for any fiscal year for the costs of providing technical assistance and training to carry out this title.
Sec. 105. system requirements
A system established in a State under section 103 to protect and advocate the rights of mentally ill individuals shall—
have the authority to—
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;
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
pursue administrative, legal, and other remedies on behalf of an individual who—
was a mentally ill individual; and
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;
be independent of any agency in the State which provides treatment or services (other than advocacy services) to mentally ill individuals;
have access to facilities in the State providing care or treatment;
in accordance with section 106, have access to all records of—
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
any individual—
who by reason of the mental or physical condition of such individual is unable to authorize the system to have such access;
who does not have a legal guardian, conservator, or other legal representative, or for whom the legal guardian is the State; and
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;
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 for the furnishing of the information required by subsection (b);
establish a board—
which will advise the system on policies and priorities to be carried out in protecting and advocating the rights of mentally ill individuals; and
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 one-half 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
on January 1, 1987, and January 1 of each succeeding year,
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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.
The Secretary and the agency of a State which administers its State plan under title XIX of the Social Security Act 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 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
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be made available within 30 days after the completion of the report or plan.
Sec. 106. access to records
An eligible system which, pursuant to section
State and local governments.
Classified information.
105(a)(4), 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 confidentiality of such records to the same extent as is required of the provider of such services.
Except as provided in paragraph (2), an eligible system which has access to records pursuant to section 105(a)(4) 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.
If disclosure of information has been denied under paragraph (1) to an individual—
such individual;
the legal guardian, conservator, or other legal representative of such individual; or
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.
An eligible system may select a mental health professional under subparagraph (A)(iii) on behalf of—
an individual whose legal guardian is the State; or
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.
If the laws of a State prohibit an eligible system from obtaining access to the records of mentally ill individuals in accordance with section 105(a)(4) and this section, section 105(a)(4) and this section shall not apply to such system before—
the date such system is no longer subject to such a prohibition; or
the expiration of the 2-year period beginning on the date of the enactment of this Act, whichever occurs first.
Sec. 107. legal actions
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 into a contract with an eligible system under section 104(a), shall exhaust in a timely manner all administrative remedies where appropriate. If, in pursuing administrative remedies, the system, agency, or organization determines that any matter with respect to such individual will not be resolved within a reasonable time, the system, agency, or organization may pursue alternative remedies, including the initiation of a legal action.
Subsection (a) does not apply to any legal action instituted to prevent or eliminate imminent serious harm to a mentally ill individual.
Part B— Administrative Provisions
Sec. 111. applications
No allotment may be made under this title to an eligible system unless an application therefor is submitted to the Secretary. Each such application shall contain—
assurances that amounts paid to such system from an allotment under this title will be used to supplement and not to supplant the level of non-Federal funds avaüable in the State in which such system is established to protect and advocate the rights of mentally ill individuals;
assurances that such system will have a staff which is trained or being trained to provide advocacy services to mentally ill individuals;
assurances that such system, and any State agency or nonprofit organization with which such system may enter into a contract under section 104(a), will not, in the case of any individual who has a legal guardian, conservator, or representative other than the State, take actions which are duplicative of actions taken on behalf of such individual by such guardian, conservator, or representative unless such guardian, conservator, or representative requests the assistance of such system; and
such other information as the Secretary may by regulation prescribe.
Sec. 112. allotment formula and reallotments
Except as provided in paragraph (2) and subject
to the availability of appropriations under section 117, the Secretary shall make allotments under section 103 from amounts appropriated under section 117 for a fiscal year to eligible systems on the basis of a formula prescribed by the Secretary which is based equally—
on the population of each State in which there is an eligible system; and
on the population of each such State weighted by its relative per capita income.
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 Trust Territory of the Pacific Islands, or the Virgin Islands, the quotient shall be considered to be one.
Notwithstanding paragraph (1) and subject to the availability of appropriations under section 117—
the amount of the allotment of the eligible system of each
District of Columbia.
Puerto Rico.
of the several States, the District of Columbia, and the Commonwealth of Puerto Rico shall not be less than $125,000; and
the amount of the allotment of the eligible system of
Guam.
American Samoa.
Northern Manana Islands.
Trust Territory of the Pacific Islands.
Virgin Islands.
Guam, American Samoa, the Commonwealth of the Northern Mariana Islands, the Trust Territory of the Pacific Islands, and the Virgin Islands shall not be less than $67,000,
To the extent that all the amounts appropriated under section 117 for a fiscal year are not allotted to eligible systems because—
one or more eligible systems have not submitted an application for an allotment for such fiscal year; or
one or more eligible systems have notified the Secretary that they do not intend to use the full amount of their allotment,
the amount which is not so allotted shall be reallotted among the remaining eligible systems.
The amount of an allotment to an eligible system for a fiscal year which the Secretary determines will not be required by the system during 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.
The Secretary shall make reallotments under paragraphs (1)
Federal Register, publication.
and (2) on such date or dates as the Secretary may fix (but not earlier than 30 days after the Secretary has published notice of the intention of the Secretary to make such reallotment in the Federal Register). A reallotment to an eligible system shall be made in proportion to the original allotment of such system for such fiscal year, but with such proportionate amount for such system being reduced to the extent it exceeds the sum the Secretary estimates such system needs and will be able to use during such period. The total of such reductions shall be similarly reallotted among eligible systems whose proportionate amounts were not so reduced. Any amount so reallotted to an eligible system for a fiscal year shall be deemed to be a part of its allotment under subsection (a) for such fiscal year.
Sec. 113. payments under allotments
For each fiscal year, the Secretary shall make payments to each eligible system from its allotment under this title. Any amount paid to an eligible system 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 purposes for which it was made.
Sec. 114. reports by the secretary
The Secretary shall include in each report required under section 107(c) of the Developmental Disabilities Assistance
and Bill of Rights Act a separate statement which contains—
a description of the activities, accomplishments, and expenditures of systems to protect and advocate the rights of mentally ill individuals supported with payments from allotments under this title, including—
a specification of the total number of mentally ill individuals served by such systems;
a description of the types of activities undertaken by such systems;
a description of the types of facilities providing care or treatment with respect to which such activities are undertaken;
a description of the manner in which such activities are initiated; and
a description of the accomplishments resulting from such activities;
a description of—
systems to protect and advocate the rights of mentally ill individuals supported with payments from allotments under this title;
activities conducted by States to protect and advocate such rights;
mechanisms established by residential facilities for mentally ill individuals to protect and advocate such rights; and
the coordination among such systems, activities, and mechanisms;
a specification of the number of systems established with allotments under this title and of whether each such system was established by a public or nonprofit private entity; and
recommendations for activities and services to improve the protection and advocacy of the rights of mentally ill individuals and a description of needs for such activities and services which have not been met by systems established under this title.
In preparing each statement required by subsection (a), the Secretary shall use and include information submitted to the Secretary in the reports required under section 105(a)(7).
Sec. 115. technical assistance
The Secretary shall provide technical assistance to eligible systems with respect to activities carried out under this title.
Sec. 116. administration
The Secretary shall carry out this title through the
Administrator of the Alcohol, Drug Abuse, and Mental Health Administration.
Sec. 117. authorization of appropriations
For allotments under this title, there are authorized to
be appropriated $10,000,000 for fiscal year 1986, $10,500,000 for fiscal year 1987, and $11,025,000 for fiscal year 1988.
TITLE II— RESTATEMENT OF BILL OF RIGHTS FOR MENTAL HEALTH PATIENTS
Sec. 201. restatement of bill of rights
It is the sense of the Congress that, as previously stated
State and local governments.
in title V of the Mental Health Systems Act, each State should review and revise, if necessary, its laws to ensure that mental health patients receive the protection and services they require, and that in making such review and revision, States should take into account the recommendations of the President’s Commission on Mental Health and the following:
A person admitted to a program or facility for the purpose of receiving mental health services should be accorded the following:
The right to appropriate treatment and related services in a setting and under conditions that—
are the most supportive of such person’s personal liberty; and
restrict such liberty only to the extent necessary consistent with such person’s treatment needs, applicable requirements of law, and applicable judicial orders.
The right to an individualized, written, treatment or service plan (such plan to be developed promptly after admission of such person), the right to treatment based on such plan, the right to periodic review and reassessment of treatment and related service needs, and the right to appropriate revision of such plan, including any revision necessary to provide a description of mental health services that may be needed after such person is discharged from such program or facility.
The right to ongoing participation, in a manner appropriate to such person’s capabilities, in the planning of mental health services to be provided such person (including the right to participate in the development and periodic revision of the plan described in subparagraph (B)), and, in connection with such participation, the right to be provided with a reasonable explanation, in terms and language appropriate to such person’s condition and ability to understand, of—
such person’s general mental condition and, if such program or facility has provided a physical examination, such person’s general physical condition;
the objectives of treatment;
the nature and significant possible adverse effects of recommended treatments;
the reasons why a particular treatment is considered appropriate;
the reasons why access to certain visitors may not be appropriate; and
any appropriate and available alternative treatments, services, and types of providers of mental health services.
The right not to receive a mode or course of treatment, established pursuant to the treatment plan, in the absence of such person’s informed, voluntary, written consent to such mode or course of treatment, except treatment—
during an emergency situation if such treatment is pursuant to or documented contemporaneously by the written order of a responsible mental health professional; or
as permitted under applicable law in the case of a person committed by a court to a treatment program or facility.
The right not to participate in experimentation in the absence of such person’s informed, voluntary, written consent, the right to appropriate protections in connection with such participation, including the right to a reasonable explanation of the procedure to be followed, the benefits to be expected, the relative advantages of alternative treatments, and the potential discomforts and risks, and the right and opportunity to revoke such consent.
The right to freedom from restraint or seclusion, other than as a mode or course of treatment or restraint or seclusion during an emergency situation if such restraint or seclusion is pursuant to or documented contemporaneously by the written order of a responsible mental health professional.
The right to a humane treatment environment that affords reasonable protection from harm and appropriate privacy to such person with regard to personal needs.
The right to confidentiality of such person’s records.
The right to access, upon request, to such person’s mental health care records, except such person may be refused access to—
information in such records provided by a third party under assurance that such information shall remain confidential; and
specific material in such records if the health professional responsible for the mental health services concerned has made a determination in writing that such access would be detrimental to such person’s health, except that such material may be made available to a similarly licensed health professional selected by such person and such health professional may, in the exercise of professional judgment, provide such person with access to any or all parts of such material or otherwise disclose the information contained in such material to such person.
The right, in the case of a person admitted on a residential or inpatient care basis, to converse with others privately, to have convenient and reasonable access to the telephone and mails, and to see visitors during regularly scheduled hours, except that, if a mental health professional treating such person determines that denial of access to a particular visitor is necessary for treatment purposes, such mental health professional may, for a specific, limited, and reasonable period of time, deny such access if such mental health professional has ordered such denial in writing and such order has been incorporated in the treatment plan for such person. An order denying such access should include the reasons for such denial.
The right to be informed promptly at the time of admission and periodically thereafter, in language and terms appropriate to such person’s condition and ability to understand, of the rights described in this section.
The right to assert grievances with respect to infringement of the rights described in this section, including the right to have such grievances considered in a fair, timely, and impartial grievance procedure provided for or by the program or facility.
Notwithstanding subparagraph (J), the right of access to (including the opportunities and facilities for private communication with) any available—
rights protection service within the program or facility;
rights protection service within the State mental health system designed to be available to such person;
system established under title I to protect and
Ante, p. 478.
advocate the rights of mentally ill individuals; and
qualified advocate;
for the purpose of receiving assistance to understand, exercise, and protect the rights described in this section and in other provisions of law.
The right to exercise the rights described in this section without reprisal, including reprisal in the form of denial of any appropriate, available treatment.
The right to referral as appropriate to other providers of mental health services upon discharge.
The rights described in this section should be in addition to and not in derogation of any other statutory or constitutional rights.
The rights to confidentiality of and access to records as
Classified information.
provided in subparagraphs (H) and (I) of paragraph (1) should remain applicable to records pertaining to a person after such person’s discharge from a program or facility.
No otherwise eligible person should be denied admission to a program or facility for mental health services as a reprisal for the exercise of the rights described in this section.
Nothing in this section should—
obligate an individual mental health or health professional to administer treatment contrary to such professional’s clinical judgment;
prevent any program or facility from discharging any person for whom the provision of appropriate treatment, consistent with the clinical judgment of the mental health professional primarily responsible for such person’s treatment, is or has become impossible as a result of such person’s refusal to consent to such treatment;
require a program or facility to admit any person who, while admitted on prior occasions to such program or facility, has repeatedly frustrated the purposes of such admissions by withholding consent to proposed treatment; or
obligate a program or facility to provide treatment services to any person who is admitted to such program or facility solely for diagnostic or evaluative purposes.
In order to assist a person admitted to a program or facility in the exercise or protection of such person’s rights, such person’s attorney or legal representatives should have reasonable access to—
such person;
the areas of the program or facility where such person has received treatment, resided, or had access; and
pursuant to the written authorization of such person, the records and information pertaining to such person’s diagnosis, treatment, and related services described in paragraph (1)(I).
Each program and facility should post a notice listing and describing, in language and terms appropriate to the ability of the persons to whom such notice is addressed to understand, the rights described in this section of all persons admitted to such program or facility. Each such notice should conform to the format and content for such notices, and should be posted in all appropriate locations.
In the case of a person adjudicated by a court of competent jurisdiction as being incompetent to exercise the right to consent to treatment or experimentation described in subparagraph (D) or (E) of paragraph (1), or the right to confidentiality of or access to records described in subparagraph (H) or (I) of such paragraph, or to provide authorization as described in paragraph (3)(C)(iii), such right may be exercised or such authorization may be provided by the individual appointed by such court as such person’s guardian or representative for the purpose of exercising such right or such authorization.
In the case of a person who lacks capacity to exercise the right to consent to treatment or experimentation under subparagraph (D) or (E) of paragraph (1), or the right to confidentiality of or access to records described in subparagraph (H) or (I) of such paragraph, or to provide authorization as described in paragraph (3)(C)(iii), because such person has not attained an age considered sufficiently advanced under State law to permit the exercise of such right or such authorization to be legally binding, such right may be exercised or such authorization may be provided on behalf of such person by a parent or legal guardian of such person.
Notwithstanding subparagraphs (A) and (B), in the case of a person admitted to a program or facility for the purpose of receiving mental health services, no individual employed by or receiving any remuneration from such program or facility should act as such person’s guardian or representative.
TITLE III— CONSTRUCTION
Sec. 301. construction
Titles I and II shall not be construed as establishing
any new rights for mentally ill individuals.
For purposes of this section, the term “mentally ill individual” has the same meaning as in section 102(3).
TITLE IV— OTHER PROGRAMS
Sec. 401. alzheimer’s disease
Part B of title III of the Public Health Service Act is
amended by inserting before section 317 the following:
“Sec. 316. “family support groups for alzheimer’s disease patients
(a) Subject to available appropriations, the Secretary,
acting through the National Institute of Mental Health, the National Institutes of Health, and the Administration on Aging, shall promote the establishment of family support groups to provide, without charge, educational, emotional, and practical support to assist individuals with Alzheimer’s disease or a related memory disorder and members of the families of such individuals. In promoting the establishment of such groups, the Secretary shall give priority to—
“(1) university medical centers and other appropriate health care facilities which receive Federal funds from the Secretary and which conduct research on Alzheimer’s disease or provide services to individuals with such disease; and
“(2) community-based programs which receive funds from the Secretary, acting through the Administration on Aging.
“(b) The Secretary shall promote the establishment of a national network to coordinate the family support groups described in subsection (a).
“(c) The Secretary shall report to Congress, not later than one
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year after the date of the enactment of this section, on family support groups and the network of such groups established pursuant to this section.”.
Sec. 402. balanced budget provision
This Act 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.
Approved May 23, 1986.