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U.S. Code as of:
01/19/04
Section 794e. Protection and advocacy of individual rights
(a) Purpose and construction
(1) Purpose
The purpose of this section is to support a system in each
State to protect the legal and human rights of individuals with
disabilities who -
(A) need services that are beyond the scope of services
authorized to be provided by the client assistance program
under section 732 of this title; and
(B)(i) are ineligible for protection and advocacy programs
under subtitle C of the Developmental Disabilities Assistance
and Bill of Rights Act of 2000 [42 U.S.C. 15041 et seq.]
because the individuals do not have a developmental disability,
as defined in section 102 of such Act [42 U.S.C. 15002]; and
(ii) are ineligible for services under the Protection and
Advocacy for Mentally Ill Individuals Act of 1986 (!1) (42
U.S.C. 10801 et seq.) because the individuals are not
individuals with mental illness, as defined in section 102 of
such Act (42 U.S.C. 10802).
(2) Construction
This section shall not be construed to require the provision of
protection and advocacy services that can be provided under the
Assistive Technology Act of 1998 [29 U.S.C. 3001 et seq.].
(b) Appropriations less than $5,500,000
For any fiscal year in which the amount appropriated to carry out
this section is less than $5,500,000, the Commissioner may make
grants from such amount to eligible systems within States to plan
for, develop outreach strategies for, and carry out protection and
advocacy programs authorized under this section for individuals
with disabilities who meet the requirements of subparagraphs (A)
and (B) of subsection (a)(1) of this section.
(c) Appropriations of $5,500,000 or more
(1) Reservations
(A) Technical assistance
For any fiscal year in which the amount appropriated to carry
out this section equals or exceeds $5,500,000, the Commissioner
shall set aside not less than 1.8 percent and not more than 2.2
percent of the amount to provide training and technical
assistance to the systems established under this section.
(B) Grant for the eligible system serving the American Indian
consortium
For any fiscal year in which the amount appropriated to carry
out this section equals or exceeds $10,500,000, the
Commissioner shall reserve a portion, and use the portion to
make a grant for the eligible system serving the American
Indian consortium. The Commission shall make the grant in an
amount of not less than $50,000 for the fiscal year.
(2) Allotments
For any such fiscal year, after the reservations required by
paragraph (1) have been made, the Commissioner shall make
allotments from the remainder of such amount in accordance with
paragraph (3) to eligible systems within States to enable such
systems to carry out protection and advocacy programs authorized
under this section for individuals referred to in subsection (b)
of this section.
(3) Systems within States
(A) Population basis
Except as provided in subparagraph (B), from such remainder
for each such fiscal year, the Commissioner shall make an
allotment to the eligible system within a State of an amount
bearing the same ratio to such remainder as the population of
the State bears to the population of all States.
(B) Minimums
Subject to the availability of appropriations to carry out
this section, and except as provided in paragraph (4), the
allotment to any system under subparagraph (A) shall be not
less than $100,000 or 1/3 of 1 percent of the remainder for
the fiscal year for which the allotment is made, whichever is
greater, and the allotment to any system under this section for
any fiscal year that is less than $100,000 or 1/3 of 1
percent of such remainder shall be increased to the greater of
the two amounts.
(4) Systems within other jurisdictions
(A) In general
For the purposes of paragraph (3)(B), Guam, American Samoa,
the United States Virgin Islands, and the Commonwealth of the
Northern Mariana Islands shall not be considered to be States.
(B) Allotment
The eligible system within a jurisdiction described in
subparagraph (A) shall be allotted under paragraph (3)(A) not
less than $50,000 for the fiscal year for which the allotment
is made.
(5) Adjustment for inflation
For any fiscal year, beginning in fiscal year 1999, in which
the total amount appropriated to carry out this section exceeds
the total amount appropriated to carry out this section for the
preceding fiscal year, the Commissioner shall increase each of
the minimum grants or allotments under paragraphs (1)(B), (3)(B),
and (4)(B) by a percentage that shall not exceed the percentage
increase in the total amount appropriated to carry out this
section between the preceding fiscal year and the fiscal year
involved.
(d) Proportional reduction
To provide minimum allotments to systems within States (as
increased under subsection (c)(5) of this section) under subsection
(c)(3)(B) of this section, or to provide minimum allotments to
systems within States (as increased under subsection (c)(5) of this
section) under subsection (c)(4)(B) of this section, the
Commissioner shall proportionately reduce the allotments of the
remaining systems within States under subsection (c)(3) of this
section, with such adjustments as may be necessary to prevent the
allotment of any such remaining system within a State from being
reduced to less than the minimum allotment for a system within a
State (as increased under subsection (c)(5) of this section) under
subsection (c)(3)(B) of this section, or the minimum allotment for
a State (as increased under subsection (c)(5) of this section)
under subsection (c)(4)(B) of this section, as appropriate.
(e) Reallotment
Whenever the Commissioner determines that any amount of an
allotment to a system within a State for any fiscal year described
in subsection (c)(1) of this section will not be expended by such
system in carrying out the provisions of this section, the
Commissioner shall make such amount available for carrying out the
provisions of this section to one or more of the systems that the
Commissioner determines will be able to use additional amounts
during such year for carrying out such provisions. Any amount made
available to a system for any fiscal year pursuant to the preceding
sentence shall, for the purposes of this section, be regarded as an
increase in the allotment of the system (as determined under the
preceding provisions of this section) for such year.
(f) Application
In order to receive assistance under this section, an eligible
system shall submit an application to the Commissioner, at such
time, in such form and manner, and containing such information and
assurances as the Commissioner determines necessary to meet the
requirements of this section, including assurances that the
eligible system will -
(1) have in effect a system to protect and advocate the rights
of individuals with disabilities;
(2) have the same general authorities, including access to
records and program income, as are set forth in subtitle C of the
Developmental Disabilities Assistance and Bill of Rights Act of
2000 [42 U.S.C. 15041 et seq.];
(3) have the authority to 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 or the American Indian consortium who are individuals
described in subsection (a)(1) of this section;
(4) provide information on and make referrals to programs and
services addressing the needs of individuals with disabilities in
the State or the American Indian consortium;
(5) develop a statement of objectives and priorities on an
annual basis, and provide to the public, including individuals
with disabilities and, as appropriate, the individuals'
representatives, an opportunity to comment on the objectives and
priorities established by, and activities of, the system
including -
(A) the objectives and priorities for the activities of the
system for each year and the rationale for the establishment of
such objectives and priorities; and
(B) the coordination of programs provided through the system
under this section with the advocacy programs of the client
assistance program under section 732 of this title, the State
long-term care ombudsman program established under the Older
Americans Act of 1965 (42 U.S.C. 3001 et seq.), the
Developmental Disabilities Assistance and Bill of Rights Act of
2000 [42 U.S.C. 15001 et seq.], and the Protection and Advocacy
for Mentally Ill Individuals Act of 1986 (!2) (42 U.S.C. 10801
et seq.);
(6) establish a grievance procedure for clients or prospective
clients of the system to ensure that individuals with
disabilities are afforded equal opportunity to access the
services of the system; and
(7) provide assurances to the Commissioner that funds made
available under this section will be used to supplement and not
supplant the non-Federal funds that would otherwise be made
available for the purpose for which Federal funds are provided.
(g) Carryover and direct payment
(1) Direct payment
Notwithstanding any other provision of law, the Commissioner
shall pay directly to any system that complies with the
provisions of this section, the amount of the allotment of the
State or the grant for the eligible system that serves the
American Indian consortium involved under this section, unless
the State or American Indian consortium provides otherwise.
(2) Carryover
Any amount paid to an eligible system that serves a State or
American Indian consortium for a fiscal year that remains
unobligated at the end of such year shall remain available to
such system that serves the State or American Indian consortium
for obligation during the next fiscal year for the purposes for
which such amount was paid.
(h) Limitation on disclosure requirements
For purposes of any audit, report, or evaluation of the
performance of the program established under this section, the
Commissioner shall not require such a program to disclose the
identity of, or any other personally identifiable information
related to, any individual requesting assistance under such
program.
(i) Administrative cost
In any State in which an eligible system is located within a
State agency, a State may use a portion of any allotment under
subsection (c) of this section for the cost of the administration
of the system required by this section. Such portion may not exceed
5 percent of the allotment.
(j) Delegation
The Commissioner may delegate the administration of this program
to the Commissioner of the Administration on Developmental
Disabilities within the Department of Health and Human Services.
(k) Report
The Commissioner shall annually prepare and submit to the
Committee on Education and the Workforce of the House of
Representatives and the Committee on Labor and Human Resources of
the Senate a report describing the types of services and activities
being undertaken by programs funded under this section, the total
number of individuals served under this section, the types of
disabilities represented by such individuals, and the types of
issues being addressed on behalf of such individuals.
(l) Authorization of appropriations
There are authorized to be appropriated to carry out this section
such sums as may be necessary for each of the fiscal years 1999
through 2003.
(m) Definitions
As used in this section:
(1) Eligible system
The term "eligible system" means a protection and advocacy
system that is established under subtitle C of the Developmental
Disabilities Assistance and Bill of Rights Act of 2000 [42 U.S.C.
15041 et seq.] and that meets the requirements of subsection (f)
of this section.
(2) American Indian consortium
The term "American Indian consortium" means a consortium
established as described in section 142 (!2) of the Developmental
Disabilities Assistance and Bill of Rights Act (42 U.S.C. 6042).
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