Sec. 142. SYSTEM REQUIRED

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## SEC. 142 SYSTEM REQUIRED **[**6042**]** ###

(a)System Required In order for a State to receive an allotment under part B— ####

(1)the State must have in effect a system to protect and advocate the rights of individuals with developmental disabilities; ####

(2)such system must— #####

(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 attention 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 incidents of abuse and neglect of individuals with developmental disabilities if the incidents are reported to the system or if there is probable cause to believe that the incidents occurred; #####

(C)on an annual basis, develop a statement of objectives and priorities for the system's activities; and #####

(D)on an annual basis, provide to the public, including individuals with developmental disabilities attributable to either physical impairment, mental impairment, or a combination of physical or mental impairments, and their representatives, as appropriate, non-State agency representatives of the State Developmental Disabilities Council, and the university affiliated program (if applicable within a State), an opportunity to comment on— ######

(i)the objectives and priorities established by the system and the rationale for the establishment of such objectives; and ######

(ii)the activities of the system, including the coordination with the advocacy programs under the Rehabilitation Act of 1973, the Older Americans Act of 1965, and the Protection and Advocacy for Mentally Ill Individuals Act of 1986, and with other related programs, including the parent training and information centers, education ombudsman programs and assistive technology projects; #####

(E)establish a grievance procedure for clients or prospective clients of the system to assure that individuals with developmental disabilities have full access to services of the system; #####

(F)not be administered by the State Developmental Disabilities Council authorized under part B; #####

(G)be independent of any agency which provides treatment, services, or habilitation to individuals with developmental disabilities; #####

(H)have access at reasonable times and locations to any resident who is an individual with a developmental disability in a facility that is providing services, supports, and other assistance to such a resident; #####

(I)have access to all records of— ######

(i)any individual with developmental disabilities 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; ######

(ii)any individual with developmental disabilities— ######

(I)who, by reason of such individual's mental or physical condition, 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 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 person with a developmental disability 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 safety of the individual is in serious and immediate jeopardy whenever— ######

(I)such representatives have been contacted by such system upon receipt of the name and address of such representatives; ######

(II)such system has offered assistance to such representatives to resolve the situation; and ######

(III)such representatives have failed or refused to act on behalf of the individual; #####

(J)hire and maintain sufficient numbers and types of staff, qualified by training and experience, to carry out such system's function except that such State shall not apply hiring freezes, reductions in force, prohibitions on staff travel, or other policies, to the extent that such policies would impact staff or functions funded with Federal funds and would prevent the system from carrying out its functions under this Act; #####

(K)have the authority to educate policymakers; and #####

(L)provide assurances to the Secretary that funds allotted to the State under this section will be used to supplement and increase the level of funds that would otherwise be made available for the purposes for which Federal funds are provided and not to supplant such non-Federal funds; ####

(3)the State must provide to the system a copy of each annual survey report and plan of corrections for cited deficiencies made pursuant to section 1902(a)(31) of the Social Security Act with respect to any intermediate care facility for the mentally retarded in the State within 30 days after the completion of each such report or plan; and ####

(4)the agency implementing the system will not be redesignated unless there is good cause for the redesignation and unless— #####

(A)notice has been given of the intention to make such redesignation to the agency that is serving as the system including the good cause for such redesignation and the agency has been given an opportunity to respond to the assertion that good cause has been shown; #####

(B)timely notice and opportunity for public comment in an accessible format has been given to individuals with developmental disabilities or their representatives; and #####

(C)the system has the opportunity to appeal to the Secretary that the redesignation was not for good cause. ###

(b)American Indian Consortium Upon application to the Secretary, an American Indian consortium, as defined in section 102, established to provide protection and advocacy services under this part, shall receive funding pursuant to subsection (c)(5). Such consortium shall coordinate activities with existing systems. ###

(c)Allotments ####

(1)In general To assist States in meeting the requirements of subsection (a), the Secretary shall allot to the States the amounts appropriated under section 143. Allotments and reallotments of such sums shall be made on the same basis as the allotments and reallotments are made under the first sentence of subsection (a)(1) and subsection

(d)of section 125, except that in any case in which— #####

(A)the total amount appropriated under section 143 for a fiscal year is at least $20,000,000— ######

(i)the allotment of each of American Samoa, Guam, the United States Virgin Islands, the Commonwealth of the Northern Mariana Islands, and the Republic of Palau (until the Compact of Free Association with Palau takes effect) for such fiscal year may not be less than the greater of— ######

(I)$107,000; or ######

(II)the greater of the allotment received by such State for fiscal year 1992, or the allotment received by such State for fiscal year 1993, under this section (determined without regard to subsection (d)); and ######

(ii)the allotment of any State not described in clause

(i)for such fiscal year may not be less than the greater of— ######

(I)$200,000; or ######

(II)the greater of the allotments received by such State for fiscal year 1992, or the allotment received by such State for fiscal year 1993, under this section (determined without regard to subsection (d)). #####

(B)the total amount appropriated under section 143 for a fiscal year is less than $20,000,000— ######

(I)$80,000; or ######

(ii)the allotment of any State not described in clause

(i)for such fiscal year may not be less than the greater of— ######

(I)$150,000; or ######

(2)Increase in allotments In any case in which the total amount appropriated under section 143 for a fiscal year exceeds the total amount appropriated under such section for the preceding fiscal year by a percentage greater than the most recent percentage change in the Consumer Price Index published by the Secretary of Labor under section 100(c)(1) of the Rehabilitation Act of 1973, the Secretary shall increase each of the minimum allotments under subparagraphs

(A)and

(B)of paragraph

(1)by an amount which bears the same ratio to the amount of such minimum allotment (including any increases in such minimum allotment under this paragraph for prior fiscal years) as the amount which is equal to the difference between— #####

(A)the total amount appropriated under section 143 for the fiscal year for which the increase in minimum allotment is being made, minus #####

(B)the total amount appropriated under section 143 for the immediately preceding fiscal year, bears to the total amount appropriated under section 143 for such preceding fiscal year. ####

(3)Monitoring the administration of the system A State may use not more than 5 percent of any allotment under this subsection for the costs of monitoring the administration of the system required under subsection (a). ####

(4)Reduction of allotment Notwithstanding paragraph (1), if the aggregate of the amounts of the allotments to be made in accordance with such paragraph for any fiscal year exceeds the total of the amounts appropriated for such allotments under section 143, the amount of a State's allotment for such fiscal year shall bear the same ratio to the amount otherwise determined under such paragraph as the total of the amounts appropriated for that year under section 143 bears to the aggregate amount required to make an allotment to each of the States in accordance with paragraph (1). ####

(5)Technical assistance and american indian consortium In any case in which amounts appropriated under section 143 for a fiscal year exceeds $24,500,000, the Secretary shall— #####

(A)use not more than 2 percent of the amounts appropriated to provide technical assistance (consistent with requests by such systems for such assistance in the year that appropriations reach $24,500,000) to eligible systems with respect to activities carried out under this title; and #####

(B)provide grants in accordance with paragraph (1)(A)(i) to American Indian Consortiums to provide protection and advocacy services. ###

(d)Unobligated Funds Any amount paid to a State for a fiscal year and remaining unobligated at the end of such year shall remain available to such State for the next fiscal year for the purposes for which such amount was paid. ###

(e)Governing board In States in which the system is organized as a private nonprofit entity with a multimember governing board, or a public system with a multimember governing board, such governing board shall be selected according to the policies and procedures of the system, except that— ####

(1)the governing board shall be composed of members who broadly represent or are knowledgeable about the needs of the individuals served by the system and include individuals with developmental disabilities who are eligible for services, or have received or are receiving services, or parents, family members, guardians, advocates, or authorized representatives of such individuals; ####

(2)not more than ⅓ of the membership 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 the membership of the board; ####

(3)any vacancy in the board shall be filled not later than 60 days after the date on which the vacancy occurs; and ####

(4)in States in which the system is organized as a public system without a multimember governing or advisory board, the system shall establish an advisory council that shall— #####

(A)advise the system on policies and priorities to be carried out in protecting and advocating the rights of individuals with developmental disabilities; and #####

(B)consist of a majority of individuals with developmental disabilities who are eligible for services, or have received or are receiving services, or parents, family members, guardians, advocates, or authorized representatives of such individuals. ###

(f)Records As used in this section the term “**records**” includes reports prepared or received by any staff of a facility rendering care or treatment, or reports prepared by an agency or staff person charged with investigating reports of incidents of abuse or neglect, injury or death occurring at such facility that describes incidents of abuse, neglect, injury or death occurring at such facility and the steps taken to investigate such incidents, and discharge planning records. ###

(g)Access to Records If the laws of a State prohibit a system from obtaining access to records of individuals with developmental disabilities the provisions of subparagraph

(A)of paragraph

(2)of subsection

(a)shall not apply to such system before— ####

(1)the date such system is no longer subject to such prohibition; or ####

(2)the expiration of the 1-year period beginning on the date of enactment of this Act1, whichever occurs first. 1So in law. Subsection

(g)was added by section 15(3) of Public Law 101–496 (104 Stat. 1199), which was enacted on October 31, 1990. The term “**this Act**”, however, is a reference to Public Law 88–164, which was enacted on October 31, 1963. Subsection

(g)above is in title I of such Public Law, and that title was added by Public Law 98–527, which was enacted on October 19, 1984. (Subsection

(g)formerly was subsection (f), and was redesignated as subsection

(g)by section 303(b)(9) of Public Law 103–230 (108 Stat. 319).) ###

(h)Legal Action ####

(1)In general Nothing in this Act shall preclude the systems described under this section from bringing a suit on behalf of individuals with developmental disabilities against a State, or agencies or instrumentalities of a State. ####

(2)Use of amounts from judgment Amounts received pursuant to paragraph

(1)through court judgments and used by the system are limited to furthering the purpose of this part and shall not be used to augment payments to legal contractors or to award personal bonuses. ####

(3)Limitation The systems may only use assistance provided under this chapter2 consistent with section 5 of the Assisted Suicide Funding Restriction Act of 1997. 2So in law. Probably should be “this title”. See section 9(l) of Public Law 105–12 (111 Stat. 28). ###

(i)Payment to Systems Notwithstanding any other provision of law, the Secretary shall pay directly to any system which complies with the provisions of this section the amount of such system's allotment under this section, unless the system delegates otherwise. ###

(j)Disclosure of Information For purposes of any periodic audit, report, or evaluation required under this Act, the Secretary shall not require a program to disclose the identity of, or any other personally identifiable information related to, any individual requesting assistance under such program. ###

(k)Public Notice of Federal Onsite Review The Secretary shall provide advance public notice of any Federal programmatic and administrative review and solicit public comment on the system funded under this part through such notice. The findings of the public comment solicitation notice shall be included in the onsite visit report. The results of such review shall be distributed to the Governor of the State and to other interested public and private parties.

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Pub. L. 101-496
104 Stat. 1199
Pub. L. 88-164
Pub. L. 98-527
Pub. L. 103-230
108 Stat. 319
Pub. L. 105-12
111 Stat. 28

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cites case law

Sec. 142

SYSTEM REQUIRED

Pub. L.Pub. L. 101-496

Stat.104 Stat. 1199

Pub. L.Pub. L. 88-164

Pub. L.Pub. L. 98-527

Pub. L.Pub. L. 103-230

Cites 8 · showing 5Cited by 0 across 0 sources