§ 794e. — Protection and advocacy of individual rights.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 29USC794e]
TITLE 29--LABOR
CHAPTER 16--VOCATIONAL REHABILITATION AND OTHER REHABILITATION SERVICES
SUBCHAPTER V--RIGHTS AND ADVOCACY
Sec. 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).
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\1\ See References in Text note below.
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(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.);
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\2\ See References in Text note below.
(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).
(Pub. L. 93-112, title V, Sec. 509, as added Pub. L. 102-569, title V,
Sec. 510(a), Oct. 29, 1992, 106 Stat. 4430; amended Pub. L. 103-73,
title I, Sec. 112(c), Aug. 11, 1993, 107 Stat. 727; Pub. L. 105-12,
Sec. 9(n), Apr. 30, 1997, 111 Stat. 28; Pub. L. 105-220, title IV,
Sec. 408(c), Aug. 7, 1998, 112 Stat. 1206; Pub. L. 105-394, title IV,
Sec. 402(c), Nov. 13, 1998, 112 Stat. 3662; Pub. L. 106-402, title IV,
Sec. 401(b)(3)(C), (D), Oct. 30, 2000, 114 Stat. 1738.)
References in Text
The Developmental Disabilities Assistance and Bill of Rights Act of
2000, referred to in subsecs. (a)(1)(B)(i), (f)(2), (5)(B), and (m)(1),
is Pub. L. 106-402, Oct. 30, 2000, 114 Stat. 1677, which is classified
principally to chapter 144 (Sec. 15001 et seq.) of Title 42, The Public
Health and Welfare. Subtitle C of the Act probably means subtitle C of
title I of the Act which is classified generally to part C (Sec. 15041
et seq.) of subchapter I of chapter 144 of Title 42. For complete
classification of this Act to the Code, see Short Title note set out
under section 15001 of Title 42 and Tables.
The Protection and Advocacy for Mentally Ill Individuals Act of
1986, referred to in subsecs. (a)(1)(B)(ii) and (f)(5)(B), was Pub. L.
99-319, May 23, 1986, 100 Stat. 478, as amended. Pub. L. 99-319 was
renamed the Protection and Advocacy for Individuals with Mental Illness
Act by Pub. L. 106-310, div. B, title XXXII, Sec. 3206(a), Oct. 17,
2000, 114 Stat. 1193, and is classified generally to chapter 114
(Sec. 10801 et seq.) of Title 42, The Public Health and Welfare. For
complete classification of this Act to the Code, see Short Title note
set out under section 10801 of Title 42 and Tables.
The Assistive Technology Act of 1998, referred to in subsec. (a)(2),
is Pub. L. 105-394, Nov. 13, 1998, 112 Stat. 3627, which is classified
principally to chapter 31 (Sec. 3001 et seq.) of this title. For
complete classification of this Act to the Code, see Short Title note
set out under section 3001 of this title and Tables.
The Older Americans Act of 1965, referred to in subsec. (f)(5)(B),
is Pub. L. 89-73, July 14, 1965, 79 Stat. 218, as amended, which is
classified generally to chapter 35 (Sec. 3001 et seq.) of Title 42, The
Public Health and Welfare. For complete classification of this Act to
the Code, see Short Title note set out under section 3001 of Title 42
and Tables.
Section 142 of the Developmental Disabilities Assistance and Bill of
Rights Act (42 U.S.C. 6042), referred to in subsec. (m)(2), was repealed
by Pub. L. 106-402, title IV, Sec. 401(a), Oct. 30, 2000, 114 Stat.
1737.
Amendments
2000--Subsecs. (a)(1)(B)(i), (f)(2). Pub. L. 106-402,
Sec. 401(b)(3)(C), substituted ``subtitle C of the Developmental
Disabilities Assistance and Bill of Rights Act of 2000'' for ``part C of
the Developmental Disabilities Assistance and Bill of Rights Act (42
U.S.C. 6041 et seq.)''.
Subsec. (f)(5)(B). Pub. L. 106-402, Sec. 401(b)(3)(D), substituted
``Developmental Disabilities Assistance and Bill of Rights Act of 2000''
for ``Developmental Disabilities Assistance and Bill of Rights Act (42
U.S.C. 6000 et seq.)''.
Subsec. (m)(1). Pub. L. 106-402, Sec. 401(b)(3)(C), substituted
``subtitle C of the Developmental Disabilities Assistance and Bill of
Rights Act of 2000'' for ``part C of the Developmental Disabilities
Assistance and Bill of Rights Act (42 U.S.C. 6041 et seq.)''.
1998--Pub. L. 105-220 amended section catchline and text generally.
Prior to amendment, text consisted of subsecs. (a) to (n) relating to
protection and advocacy of individual rights.
Subsec. (a)(2). Pub. L. 105-394 substituted ``the Assistive
Technology Act of 1998'' for ``the Technology-Related Assistance for
Individuals With Disabilities Act of 1988 (42 U.S.C. 2201 et seq.)''.
1997--Subsec. (f)(8). Pub. L. 105-12 added par. (8).
1993--Subsec. (a)(1). Pub. L. 103-73, Sec. 112(c)(1), added par. (1)
and struck out former par. (1) which read as follows: ``are ineligible
for client assistance programs under section 732 of this title; and''.
Subsec. (b). Pub. L. 103-73, Sec. 112(c)(2), added subsec. (b) and
struck out heading and text of former subsec. (b). Text read as follows:
``(1) Allotments.--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 paragraphs
(1) and (2) of subsection (a) of this section.
``(2) Other jurisdictions.--For the purposes of this subsection,
Guam, American Samoa, the United States Virgin Islands, the Commonwealth
of the Northern Mariana Islands, and the Republic of Palau shall not be
considered to be States.''
Subsec. (c)(4)(A). Pub. L. 103-73, Sec. 112(c)(3)(A)(i), substituted
``paragraph (3)(B)'' for ``this subsection''.
Subsec. (c)(4)(B). Pub. L. 103-73, Sec. 112(c)(3)(A)(ii),
substituted ``allotted under paragraph (3)(A)'' for ``allotted''.
Subsec. (c)(5). Pub. L. 103-73, Sec. 112(c)(3)(B), added par. (5)
and struck out heading and text of former par. (5). Text read as
follows:
``(A) States.--For purposes of determining the minimum amount of an
allotment under paragraph (3)(B), the amount $100,000 shall, in the case
of such allotments for fiscal year 1994 and subsequent fiscal years, be
increased to the extent necessary to offset the effects of inflation
occurring since October 1992, as measured by the percentage increase in
the Consumer Price Index For All Urban Consumers (U.S. city average)
during the period ending on April 1 of the fiscal year preceding the
fiscal year for which the allotment is to be made.
``(B) Certain territories.--For purposes of determining the minimum
amount of an allotment under paragraph (4)(B), the amount $50,000 shall,
in the case of such allotments for fiscal year 1994 and subsequent
fiscal years, be increased to the extent necessary to offset the effects
of inflation occurring since October 1992, as measured by the percentage
increase in the Consumer Price Index For All Urban Consumers (U.S. city
average) during the period ending on April 1 of the fiscal year
preceding the fiscal year for which the allotment is to be made.''
Subsec. (d). Pub. L. 103-73, Sec. 112(c)(4), added subsec. (d) and
struck out heading and text of former subsec. (d). Text read as follows:
``Amounts necessary to provide allotments to systems within States in
accordance with subsection (c)(3)(B) of this section as increased under
subsection (c)(5) of this section, or to provide allotments in
accordance with subsection (c)(4)(B) of this section as increased in
accordance with subsection (c)(5) of this section, shall be derived by
proportionately reducing the allotments of the remaining systems within
States under subsection (c)(3) of this section, but with such
adjustments as may be necessary to prevent the allotment of any such
remaining systems within States from being thereby reduced to less than
the greater of $100,000 or one-third of one percent of the sums made
available for purposes of this section for the fiscal year for which the
allotment is made, as increased in accordance with subsection (c)(5) of
this section.''
Subsec. (i). Pub. L. 103-73, Sec. 112(c)(6), which directed the
amendment of this section ``in subsection (i), to read as follows: ``,
was executed by adding subsec. (i). Former subsec. (i) redesignated (n).
Subsec. (j). Pub. L. 103-73, Sec. 112(c)(7), added subsec. (j) and
struck out heading and text of former subsec. (j). Text read as follows:
``An eligible system may not use more than 5 percent of any allotment
under subsection (c) of this section for the cost of administration of
the system required by this section.''
Subsec. (n). Pub. L. 103-73, Sec. 112(c)(5), redesignated subsec.
(i) as (n).
Effective Date of 1997 Amendment
Amendment by Pub. L. 105-12 effective Apr. 30, 1997, applicable to
Federal payments made pursuant to obligations incurred after Apr. 30,
1997, for items and services provided on or after such date, and also
applicable with respect to contracts entered into, renewed, or extended
after Apr. 30, 1997, as well as contracts 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 section 14401 of
Title 42, The Public Health and Welfare.
Section Referred to in Other Sections
This section is referred to in sections 716, 718, 3002 of this
title; title 42 section 14404; 15461.
