26774 Federal Register / Vol. 60, No. 96 / Thursday, May 18, 1995 / Proposed Rules

DEPARTMENT OF HEALTH AND

HUMAN SERVICES

Administration for Children and

Families

45 CFR Parts 1385, 1386, 1387 and

1388

RIN 0970–AB11

Developmental Disabilities Program

AGENCY: Administration on

Developmental Disabilities,

Administration for Children and

Families, HHS.

ACTION: Notice of proposed rulemaking

SUMMARY: This rule proposes

clarifications and new requirements to

implement changes made by the

Developmental Disabilities Assistance

and Bill of Rights Act Amendments of

1990 and the Developmental Disabilities

Assistance and Bill of Rights Act

Amendments of 1994.

DATES: To ensure consideration

comments must be submitted on or

before July 17, 1995.

ADDRESSES: Please address comments

to: Commissioner, Administration on

Developmental Disabilities, Room 329–

D (Regulations), Hubert H. Humphrey

Building, 200 Independence Avenue

SW, Washington, DC 20201.

It would be helpful if agencies and

organizations submitted copies in

duplicate. Two weeks after the close of

the comment period, comments and

letters will be available for public

inspection in Room 309–D, Hubert H.

Humphrey Building, 200 Independence

Avenue SW, Washington, DC 20201,

Monday through Friday, 8 a.m. to 4

p.m., telephone (202) 690–5841.

FOR FURTHER INFORMATION CONTACT: John

P. Doyle, Director, Administration and

Planning Staff, Administration on

Developmental Disabilities, Telephone:

(202) 690–5504 (Voice), (202) 690–6415

(TDD). These are not toll-free numbers.

This document will be made available

in accessible formats upon request.

SUPPLEMENTARY INFORMATION:

I. Program History

In 1963, the Mental Retardation

Facilities and Construction Act (Pub. L.

88–164) was enacted to plan activities

and construct facilities to provide

services to persons with mental

retardation. This legislation was

subsequently amended by the

Developmental Disabilities Services and

Facilities Construction Amendments of

1970 (Pub. L. 91–517) which constituted

the first Congressional effort to address

the needs of a group of persons with

disabilities designated as developmental

disabilities. The 1970 Amendments

defined developmental disabilities to

include individuals with mental

retardation, cerebral palsy, epilepsy and

other neurological conditions closely

related to mental retardation which

originated prior to age 18 and

constituted a substantial disability. It

also created State Planning Councils to

advocate for, plan, monitor and evaluate

services for persons with developmental

disabilities; and authorized grants for

constructing, administering and

operating University Affiliated

Facilities. The legislation authorizing

the Developmental Disabilities program

has been revised periodically. The major

changes of note included the following:

(1) The 1975 Amendments (Pub. L.

94–103) deleted the construction

authority, authorized studies to

determine the feasibility of having

University Affiliated Facilities establish

Satellite Centers, established the

Protection and Advocacy System and

added a section on ‘‘Rights of the

Developmentally Disabled;’’

(2) The 1978 Amendments (Pub. L.

95–602) included a functional definition

of developmental disabilities;

(3) The Developmental Disabilities

Amendments of 1984 (Pub. L. 98–527)

added a new emphasis regarding the

purpose of the program, to assist States

to assure that persons with

developmental disabilities receive the

care, treatment and other services

necessary to enable them to achieve

their maximum potential through

increased independence, productivity

and integration into the community; and

(4) The 1987 Amendments (Pub. L.

100–146) established an annual report

to Congress on the Developmental

Disabilities program. The

Administration on Developmental

Disabilities (ADD) compiles this report

using information received from the

State Planning Councils, the Protection

and Advocacy Systems, the University

Affiliated Programs and grantees of the

Projects of National Significance. Also

included in the 1987 Amendments was

a special 1990 Report to Congress on the

scope and effectiveness of services

provided to persons with developmental

disabilities by State agencies and an

analysis of consumer satisfaction. The

State Planning Councils prepared the

State Reports to ADD and this

information was used as a basis for the

Report to Congress.

The Developmental Disabilities

Assistance and Bill of Rights Act

Amendments of 1990, Pub. L. 101–496,

(the Act), extended authorization of

appropriations for programs under the

Act through Fiscal Year 1993 and made

revisions that:

(1) Add to the purpose of the Act the

commitment toward enabling all people

with developmental disabilities,

including those with severe disabilities,

to achieve interdependence and

inclusion into society;

(2) Strengthen the independence of

State Protection and Advocacy systems;

(3) Establish core awards for

University Affiliated Programs training

projects; and

(4) Broaden the purpose of Projects of

National Significance to include

supportive living and quality of life

opportunities.

The Developmental Disabilities

Assistance and Bill of Rights Act

Amendments of 1994, Pub. L. 103–230,

(the Act), extends authorization of

appropriations for programs under the

Act through Fiscal Year 1996 and made

revisions that:

(1) Include findings that emphasize

respect for individual dignity, personal

preferences, and cultural differences in

the provision of services, supports and

other assistance, and recognize that

individuals with developmental

disabilities and their families are the

primary decision-makers regarding

services, supports, and other assistance

they receive;

(2) Ensure that racial and ethnic

individuals from diverse backgrounds

are fully included at all levels and in all

activities authorized under this Act.

This includes language regarding

unserved and underserved populations

and ‘‘culturally competent’’ services,

supports and other assistance;

(3) Require State Developmental

Disabilities Council activities to

promote systemic change, capacity

building and advocacy;

(4) Clarify the responsibilities of the

State Developmental Disabilities

Council and the Designated State

Agency;

(5) Require the Protection and

Advocacy System (P&A) to hire and

maintain sufficient numbers and types

of qualified staff to carry out the P&A’s

function;

(6) Protect the confidentiality of client

records;

(7) Require development of new

program standards for University

Affiliated Programs; and

(8) Direct the Secretary to support

grants to conduct an investigation on

the expansion of part B programs (State

Developmental Disabilities Councils) to

individuals with severe disabilities

other than developmental disabilities.
Federal Register / Vol. 60, No. 96 / Thursday, May 18, 1995 / Proposed Rules 26775

II. Developmental Disabilities Program

A. Federal Assistance to State

Developmental Disabilities Councils

Formula grants are made to each State

to support State Developmental

Disabilities Councils. The

responsibilities of the Councils are to

promote, through systemic change,

capacity building and advocacy

activities; the development of a

consumer and family-centered,

comprehensive system; and, a

coordinated array of services, supports

and other assistance. These activities are

designed to achieve independence,

productivity, integration and inclusion

into the community for individuals with

developmental disabilities.

B. Protection and Advocacy of the

Rights of Individuals With

Developmental Disabilities

Formula grants are made to States for

the establishment of a system to protect

and advocate for the rights of

individuals with developmental

disabilities. This system must have the

authority to pursue legal, administrative

and other appropriate remedies to

ensure the protection of the rights of

individuals with developmental

disabilities who are receiving, or who

are eligible to receive, treatment or

habilitation services.

C. University Affiliated Programs

Grants are made to universities, or to

public or nonprofit entities associated

with a college or university, to establish

University Affiliated Programs (UAPs).

Activities of University Affiliated

Programs are to be conducted in a

culturally competent manner and

include: Interdisciplinary pre-service

preparation of students and fellows;

community service activities which

include community training and

technical assistance; and the

dissemination of subsequent

information and research findings.

D. Projects of National Significance

This program provides funding

through grants and contracts to public

or nonprofit private entities for projects

which support national initiatives. Such

initiatives include the collection of

necessary data; provision of technical

assistance to State Developmental

Disabilities Councils, protection and

advocacy systems and university

affiliated programs; and support to other

nationally significant activities, such as

employment and housing.

III. Discussion of Proposed Regulations

Overall, the proposed regulations

have been developed to establish new

requirements based on the changes

made by two reauthorizations: (1) The

Developmental Disabilities Assistance

and Bill of Rights Act Amendments of

1990 (Pub. L. 101–496) and (2) the

Developmental Disabilities Assistance

and Bill of Rights Act Amendments of

1994 (Pub. L. 103–230).

Key proposed provisions are as

follows:

A. Section 1386.20, Designated State

Protection and Advocacy System, the

current rule has been revised to address

requirements concerning the

redesignation of the Protection and

Advocacy System (1990 Amendments);

B. Section 1386.21, Requirements of

the Protection and Advocacy System,

the regulations regarding confidentiality

of client records has been revised

pursuant to section 142(j) (1994

Amendments);

C. Section 1386.23, Periodic reports:

Protection and Advocacy System,

regulatory language is being proposed to

address the statutory requirement for an

annual statement of objectives and

priorities and a statement of the

rationale used to establish such

objectives (1990 Amendments);

D. Section 1386.30, State plan

requirements, the regulation regarding

State Developmental Disabilities

Council responsibilities has been

revised to address new requirements

regarding the development of the State

plan and the hiring and supervision of

staff (1994 Amendments);

E. The current regulatory language for

part 1388 has been revised to include

new program standards for University

Affiliated Programs (UAPs) (1994

Amendments);

A section-by-section discussion of the

changes we are proposing follows:

PART 1385—REQUIREMENTS

APPLICABLE TO THE

DEVELOPMENTAL DISABILITIES

PROGRAM

In § 1385.1, General, the changes

being proposed are to replace the

reference to Basic State Grant with a

reference to Federal Assistance to the

State Developmental Disabilities

Councils and to change the Protection

and Advocacy System reference to

‘‘individuals’’ rather than ‘‘persons’’

with developmental disabilities.

In § 1385.3 Definitions, editorial

changes are being proposed to

incorporate the reference to the

Administration for Children and

Families rather than the Office of

Human Development Services. This

action is required because the

Administration on Developmental

Disabilities was made a part of the

Administration for Children and

Families. A notice was published in the

Federal Register on April 18, 1991 (See

56 FR 15885). We are also proposing to

include a definition of ‘‘Protection and

Advocacy System’’ to mean the

organization or agency designated in a

State to administer and operate a

protection and advocacy program for

individuals with developmental

disabilities under part C of the

Developmental Disabilities Assistance

and Bill of Rights Act, as amended by

Pub. L. 103–230 (42 U.S.C. 6041, 6042);

and advocacy programs under the

Protection and Advocacy for Mentally

Ill Individuals Act 1986 (PAIMI Act), as

amended (42 U.S.C. 10801 et seq.); the

Protection and Advocacy of Individual

Rights Program (PAIR), (29 U.S.C. 794e);

and the Technology-Related Assistance

for Individuals with Disabilities Act of

1988, as amended (29 U.S.C. 2212(e)).

Protection and Advocacy System also

may be designated by the Governor of a

State to conduct the Client Assistance

Program (CAP) authorized by section

112 of the Rehabilitation Act of 1973, as

amended, (29 U.S.C. 732). Finally, the

Protection and Advocacy System may

provide advocacy services under other

Federally funded programs.

Section 1385.4 is amended to re-word

‘‘persons with developmental

disabilities’’ to ‘‘individuals with

developmental disabilities’’ in the title

and paragraphs (a), (b), and (c). The

statutory citation in paragraph’s (b) and

(c) have been updated to conform with

the 1994 Amendments.

The regulations of § 1385.5 Recovery

of Federal funds used for construction

of facilities and § 1385.7 Waivers have

been removed and those sections have

been reserved. Such action has been

done because section 105, Recovery, has

been removed from the Act (1994

Amendments). As indicated in the

Senate Report, number 103–120, pages

25 and 26, section 105, Recovery, has

been deleted because the Committee

understood that all facilities for which

part B or part D funds had been used

towards construction costs, have been

completed for more than 20 years

making this section no longer relevant.

We are proposing to revise § 1385.6 by

using the term ‘‘individuals with

disabilities’’ (1994 Amendments). This

term is meant to be consistent with

‘‘handicapped person’’ as defined under

45 CFR 84.3(j). We are also proposing to

include language which clarifies grantee

responsibilities regarding affirmative

action pursuant to section 109 of the Act

(42 U.S.C. 6008) and to reference the

Americans with Disabilities Act (42

U.S.C. 12101 et seq.) with respect to
26776 Federal Register / Vol. 60, No. 96 / Thursday, May 18, 1995 / Proposed Rules

employment of individuals with

disabilities.

In § 1385.8, Formula for determining

allotments, editorial changes are being

proposed, which includes the deletion

of the concept of Basic State program

which is no longer applicable under the

Act. Paragraph (c) is being revised to

update references (1994 amendments).

In § 1385.9 (a) and (b), Grants

administration requirements, an

editorial change is being proposed to

update the term Special Project to

Projects of National Significance (1987

Amendments). Paragraph (d) addresses

the issue of the Department keeping

information about individual clients

confidential when making audits and

examinations and taking excerpts and

transcripts of records of grantees and

subgrantees. This paragraph is being

revised to include a reference to part

92—Uniform Administrative

Requirements for Grants and

Cooperative Agreements to State and

Local Governments for grants awarded

to State Developmental Disabilities

Councils, University Affiliated Programs

and Projects of National Significance

and to remove the reference to the

Protection and Advocacy System. We

are then proposing a new paragraph (e)

to address the new requirement of

section 142(j) and the language of

Senate Report 120, 103rd Cong., 1st

Sess., page 39 (1993). The Report

indicated * * *’’ that for any audit,

report or evaluation required under this

Act, the Secretary shall not require the

P&A system to ‘‘disclose the identity of,

or any personally identifiable

information related to, any individual

requesting assistance under such

program.’’ This requirement is

consistent with the Rehabilitation Act

Amendments of 1992 which contains

similar language pertaining to the

confidentiality of client records during

Federal reviews of P&A systems. The

Committee does not intend to limit the

monitoring responsibilities of the

Administration on Developmental

Disabilities to assure that P&A systems

are in compliance with the Act.’’ In

paragraph (e)(1) the regulation indicates

that for any audit, report or evaluation

required under the Act, the Secretary

shall not require the Protection and

Advocacy system to ‘‘disclose the

identity of, or any personally

identifiable information related to, any

individual requesting assistance under

such program.’’ In paragraph (e)(2) the

proposed regulation indicates that if an

audit, monitoring review, evaluation, or

other investigation by the Department

produces evidence that the system has

violated the Act or the regulations, the

system will bear the burden of proving

its compliance. The System’s inability

to establish compliance because of the

confidentiality of records will not

relieve it of this responsibility. The

eligible system may elect to obtain a

release from all individuals requesting

or receiving services at the time of

intake or application. The release shall

state that only information directly

related to client and case eligibility will

be subject to disclosure to officials of

the Department.

ADD is particularly interested in

receiving comments on the regulations

being proposed in paragraph (e)(2).

PART 1386—FORMULA GRANT

PROGRAMS

In part 1386, subpart A—Basic

requirements, we are proposing in

§ 1386.1, General, that the reference to

the Basic State grant program be deleted

because there is no statutory basis for

this language and the reference to the

State Developmental Disabilities

Councils be included in its place. We

are proposing additional language in

§ 1386.2(b)(1), Obligation of funds, that

would implement an expanded

definition of obligation given in section

125(c) of the Act (42 U.S.C. 6025(c)), as

amended (1994 Amendments),

regarding State Interagency Agreements.

We are proposing several technical

changes to paragraphs (c)(1) and (2). In

paragraph (1), we are proposing to

replace the phrase Protection and

Advocacy ‘‘office’’ to Protection and

Advocacy ‘‘System’’ and reference

‘‘individuals’’ with developmental

disabilities rather than ‘‘persons’’ with

developmental disabilities. In paragraph

(2), we are proposing to reword the

phrase ‘‘developmentally disabled

persons’’ to ‘‘individuals with

developmental disabilities’’ (1994

Amendments); to replace the reference

to Basic State Grants with the legislative

language for Part B—Federal Assistance

to State Developmental Disabilities

Councils (1994 Amendments); and

reword the last sentence for consistency

with the regulatory language contained

in § 1386.2(a) regarding the Federal

fiscal year.

In part 1386, subpart B, the heading

has been revised to read ‘‘State System

for Protection and Advocacy of the

Rights of Individuals with

Developmental Disabilities.’’ This

revision clarifies how this program is

referenced. Accordingly, we are

proposing editorial changes in the

regulations to reflect this change.

We are proposing a new § 1386.19,

Definitions, to include definitions for

subpart B, § 1386.20 and § 1386.21. ADD

is proposing a definition of ‘‘designating

official’’ to clarify who has the

responsibility in the State to designate

the Protection and Advocacy System

under section 142 of the Act

(§ 1386.20(a)). Addition of this

definition will permit us to simplify the

wording of several provisions relating to

protection and advocacy agencies. We

are then proposing the following

definitions of terms used in the

proposed regulations in § 1386.21(c)(1)

and (3), (§ 142(a)(2)(B)) and

(§ 142(a)(2)(I)): ‘‘full investigations’’

means the access to clients, public and

private facilities and entities and their

staff, and the records regarding the

operation of the institution that is

necessary for a reasonable person to

make an informed decision about

whether the alleged or suspected abuse

is taking place or has taken place;

‘‘probable cause’’ means a reasonable

ground for belief that an individual or

group of individuals with

developmental disabilities may now be

subject to or have been subject to abuse

or neglect; and ‘‘record of an individual

with a developmental disability’’

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.

For reasons of consistency, we are

proposing to revise the heading of

§ 1386.20 to read, Designated State

Protection and Advocacy System rather

than Designated State Protection and

Advocacy Office.

We are proposing a change in

§ 1386.20(a) to include the proposed

term ‘‘designating official’’ as defined in

§ 1386.19.

We also are proposing to revise

§ 1386.20(d) to address the procedure to

be followed in order for a State to

designate a new agency to administer

and operate the Protection and

Advocacy system pursuant to section

142(a)(4) of the Act, (42 U.S.C.

6042(a)(4)). State Protection and

Advocacy agencies are responsible for

administering and operating State

advocacy systems. These systems must

be independent of State public and

private service systems, provide

information and referral, and have the

authority to pursue legal, administrative

and other appropriate remedies to

ensure the protection of the rights of

individuals with developmental

disabilities and individuals with mental
Federal Register / Vol. 60, No. 96 / Thursday, May 18, 1995 / Proposed Rules 26777

illness. (See sections 102(2), 103 and

105 of the Protection and Advocacy for

Mentally Ill Individuals Act of 1986, as

amended (42 U.S.C. 10802(2), 10803

and 10805). ‘‘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.’’ Therefore, the Protection and

Advocacy System provides services to

both individuals with developmental

disabilities and to individuals with

mental illness. The purpose of these

proposed requirements is to ensure that

a Protection and Advocacy System is

only redesignated to a new agency for

reasons which constitute good cause.

The action giving rise to good cause

should be of a substantial nature.

Redesignation for good cause may

include, but is not limited to,

eliminating longstanding or pervasive

inefficiency. However, merely technical

or minor shortcomings will not support

such a finding. Further, in order to

qualify as good cause, the allegation

must be made in good faith, which

means that it was not made for the

purpose of frustrating the

accomplishment of the goals of the Act,

these regulations, the Protection and

Advocacy for Mentally Ill Individuals

Act (42 U.S.C. 10801 et seq.), the

Protection and Advocacy of Individual

Rights Program (29 U.S.C. 794(e), the

Technology-Related Assistance for

Individuals With Disabilities Act of

1988, as amended (29 U.S.C. 2212(e)),

and any other Federal advocacy

program that is administered by the

State Protection and Advocacy System.

The Administration on Developmental

Disabilities encourages Governors and

Protection and Advocacy agencies to

consult with one another and seek

resolution before involving the public.

In § 1386.20(d)(1), we are proposing to

provide current Protection and

Advocacy agencies and the public a

period of no less than 45 days

concurrently to respond to notices given

of the intention to redesignate the

Protection and Advocacy agency. In

developing the regulations we are

proposing timeframes for notices which

are considered timely and are similar to

those used in other activities required

by Federal regulations. We are also

proposing to revise the requirements for

contents of the public notice provided

for in paragraph (d)(2) by requiring that

it include the following new or revised

requirements:

(1) The Federal requirements for the

Protection and Advocacy System for

individuals with developmental

disabilities (section 142 of the Act); and,

where applicable, the requirements of

the Protection and Advocacy for

Individuals with Mental Illness Act of

1986, as amended (42 U.S.C. 10805 and

10821); the Protection and Advocacy of

Individual Rights Program (29 U.S.C.

794(e) and the Client Assistance

Program (29 U.S.C. 732), of the

Rehabilitation Act of 1973, as amended;

the Technology-Related Assistance for

Individuals With Disabilities Act of

1988, as amended by Pub.L. 103–218

(Protection and Advocacy contracts and

grants); or any other Federal advocacy

program that is administered by the

State Protection and Advocacy System;

(2) The goals and function of the

State’s Protection and Advocacy System

including the current Statement of

Objectives and Priorities;

(3) The name and address of the

agency currently designated to

administer and operate the Protection

and Advocacy System; and an

indication of whether the agency also

operates other Federal advocacy

programs;

(4) A description of the current

Protection and Advocacy agency and

the system it administers and operates

including, as applicable, descriptions of

other Federal advocacy programs it

operates;

(5) A clear and detailed explanation of

the good cause for the proposed

redesignation;

(6) A statement suggesting that

interested persons may wish to write the

current State Protection and Advocacy

agency to obtain a copy of its response

to the notice initiating the

redesignation. Copies shall be provided

in accessible formats to individuals with

disabilities upon request;

(7) The name of the new agency

proposed to administer and operate the

Protection and Advocacy System under

the Developmental Disabilities program.

This agency will be eligible to

administer other Federal advocacy

programs;

(8) A description of the system which

the new agency would administer and

operate, including a description of all

other Federal advocacy programs the

agency would operate; and

(9) The timetable for assumption of

operations by the new agency and the

estimated costs of any transfer and startup operations.

We are proposing that the public

notice must include information on the

requirements for all other Federal

Protection and Advocacy Programs

which are currently administered by the

P&A agency and are subject to

redesignation as well as the Protection

and Advocacy System for individuals

with developmental disabilities. The

rationale for this requirement is that a

redesignation of the Protection and

Advocacy agency for individuals with

developmental disabilities under

section 142 of the Act also has an

impact on other Federal Protection and

Advocacy Programs. Federal legislation

makes the State’s designated Protection

and Advocacy agency for individuals

with developmental disabilities eligible

to receive funding for operating the

other Federal advocacy programs listed

above. Redesignation of the

Developmental Disabilities agency may

result in the redesignation of the other

programs. Therefore, the regulation

seeks to insure that individuals with

other disabilities, their families and

representatives have an opportunity to

make informed comments on the

proposed redesignation. The other new

requirements for the notice are being

included so that members of the public

can become fully informed about the

reasons for and consequences of the

redesignation.

In paragraph (d)(3) we are requiring

that copies of the notice of proposed

redesignation must be made generally

available to individuals with

developmental disabilities and

individuals with mental illness who live

in residential institutions through

posting or some other means. The need

for notice is to ensure that individuals

who reside in institutional settings also

are informed of the reasons for and the

consequences of the proposed

redesignation. The notice could be

accomplished by mailing a copy of the

original notice to such facilities and

requesting that it be made available to

residents through posting. This notice

also could be sent to other advocacy

groups for individuals with disabilities

in the State. This new requirement is

based on the intimate connection

between the Protection and Advocacy

program serving individuals with

developmental disabilities and the

Protection and Advocacy program

serving individuals with mental illness.

Also, we are proposing in paragraph

(d)(3) that the public notice must be in

a format accessible to individuals with

developmental disabilities or their

representatives, e.g., tape, diskette

(section 142(a)(4)(B) of the Act).

In paragraph (d)(4), we are proposing

that after the expiration of the 45-day

public comment period required by

paragraph (d)(1), the designating official

must conduct a public hearing on the

redesignation proposal. After

consideration of all public and agency

comments, the designating official must

give notice of the final decision to the

currently designated agency and the

public through the same means used
26778 Federal Register / Vol. 60, No. 96 / Thursday, May 18, 1995 / Proposed Rules

under paragraph (d)(3). If the notice to

the currently designated agency states

that the redesignation will take place, it

must also inform the agency of its right

to appeal this decision to the Assistant

Secretary, Administration for Children

and Families. The redesignation shall

not be effective until 10 working days

after notifying the current Protection

and Advocacy agency or, if the agency

appeals, until the Assistant Secretary

has considered the appeal.

We are proposing new requirements

in § 1386.20(e) to address the

procedures by which a Protection and

Advocacy agency which has been

redesignated may appeal the

designation to the Assistant Secretary.

The Assistant Secretary will consult

with administrators of Federal advocacy

programs that will be directly affected

by the proposed redesignation in

making a final decision on the appeal,

including the Center for Mental Health

Services, the Rehabilitation Services

Administration, the National Institute

on Disability and Research, and any

other Federal agencies which administer

advocacy programs that will be directly

affected by the proposed redesignation.

The Administration on

Developmental Disabilities is

particularly interested in receiving

comments on this area.

In § 1386.21(a) we are proposing to

update the reference from the Basic

Support Program to the State

Developmental Disabilities Council. In

paragraphs (b) (1) and (2) we are

proposing to revise the regulations to

incorporate the prohibition of

compelled disclosure of information in

client records pursuant to section 142(j)

of the Act, as amended (1994

Amendments). This includes a reference

to Federal law in the final sentence of

paragraph (b)(1) that is consistent with

the intent of the existing regulation,

which is to allow parents or legal

guardians access to a client’s record

except when such access is legally

prohibited.

We are proposing regulations in a new

paragraph (c)(1) to indicate that the

Protection and Advocacy System must

have access to records of an individual

with a developmental disability as

provided by section 142(a)(2)(I) of the

Act and the authority necessary to

conduct full investigations of abuse and

neglect on the Protection and Advocacy

System’s determination of probable

cause or if the incidents are reported to

the System as provided by section

142(a)(2)(B).

Questions have arisen over whether

P&As are required to have authority to

obtain records of individuals who are no

longer living. The required authority for

access to records of persons with

developmental disabilities is described

in section 142(a)(2)(I). This provision

includes a requirement for authority to

access records of persons who, by

reason of mental or physical condition,

are unable to authorize the System’s

access to such records, and are without

a legal guardian or conservator, or for

whom the legal representative is the

State; and about whom the System has

had a report of abuse or neglect or as the

result of monitoring or other activities

has probable cause to believe such

individual has been subject to abuse or

neglect. Section 142(f) defines ‘‘record’’

to include reports of deaths occurring in

a facility prepared by an agency or staff

person charged with investigating the

event. Based on these provisions, ADD

is proposing to reference, in paragraph

(c)(1) the P&A’s authority to access

records of persons with developmental

disabilities who are no longer living.

ADD understands that P&As

undertake investigations of incidents of

abuse and neglect based on media

reports, general investigations,

inspection reports or other credible

information regarding abuse and

neglect. P&As also may use information

gained through telephone calls or

informal complaints by residents, staff,

relatives or friends. The proposed

regulations are intended to confirm the

authority of P&As to rely on such

information as grounds for

investigations of incidents of abuse and

neglect either because they are reports

of incidents, or because they constitute

‘‘probable cause.’’ Some facilities have

claimed that P&As must make

individual-specific findings of probable

cause before they may investigate. The

definition of probable cause includes

‘‘the reported existence of conditions or

problems that are usually associated

with abuse and neglect.’’

In paragraph (c)(2) we are proposing

Protection and Advocacy Systems must

have trained staff to conduct full

investigations of suspected instances of

abuse and neglect or if the incidents are

reported to the System. In paragraph

(c)(3) we are proposing to require that

Protection and Advocacy Systems have

authority to have access at reasonable

times and locations to residents of any

private or public facility that is

providing services, support, and other

assistance to such residents. This

requirement is based on section

142(a)(2)(H) of the statute. In addition,

the proposed paragraph (c)(3) requires

that Protection and Advocacy Systems

have authority to access at reasonable

times and locations staff of private or

public facilities when investigating

incidents of abuse and neglect. This

requirement is based upon section

142(a)(2)(B). ADD views the authority

for access to staff of facilities as a

necessary part of the authority to

investigate incidents of abuse and

neglect.

Also, the Administration on

Developmental Disabilities wants to

address the concerns raised by P&As

that their authority continues to be

challenged in the areas of access to

records and determining probable cause

tied to abuse and neglect cases. The

statutory definition of ‘‘record,’’ which

appears at section 142(f) and is

reiterated in the proposed § 1386.19,

encompasses the records a facility

would have on an individual with a

developmental disability, and reports

which were prepared by investigators in

connection with incidents of abuse or

neglect. We believe this definition must

be interpreted liberally in order to

ensure proper exercise of the authority

to investigate incidents of abuse and

neglect which P&As must have under

section 142(a)(2)(B). ADD also believes

that it is critical to this investigative

function that Systems be given access to

records promptly. Undue delay can

prevent a System from intervening to

prevent further abuse or neglect.

The Act and the proposed regulations

refer to the authority of P&As to

determine probable cause in connection

with investigation of incidents of abuse

and neglect. The Agency is concerned

that in the exercise of their required

authority under section 142(a)(2)(B) to

investigate incidents based on probable

cause that P&As not be unduly

hampered. The Act does not require a

judicial or other third party

determination of whether probable

cause exists. In the ordinary situation, a

belief by P&A staff that an individual

may be subject to or has been subject to

abuse or neglect should be sufficient to

establish probable cause. In order to

clarify the meaning of probable cause,

we have proposed a definition in

§ 1396.19.

In paragraph (c)(4), we are proposing

that the Protection and Advocacy

Systems must be authorized to keep

confidential the names and identity of

individuals who furnish information

that forms the basis for a determination

that probable cause exists. We believe

that disclosure of this information

would compromise the effectiveness

and integrity of the investigation and

could expose sources and already

vulnerable clients to retaliation.

Moreover, such disclosure would likely

provide a disincentive to other potential

informants to come forward in the

future.
Federal Register / Vol. 60, No. 96 / Thursday, May 18, 1995 / Proposed Rules 26779

The Administration on

Developmental Disabilities recognizes

that the requirement in the proposed

regulation for access to private

institutions may be problematic,

especially relating to existing State law

and rights of access to records and

privacy issues. Therefore, we are

particularly interested in receiving

comments on the possible impact of

these provisions on Protection and

Advocacy Systems, State Governments

and private institutions.

A new paragraph (d) is being added

which addresses the issue of a

Protection and Advocacy System

restricting the use of appropriate

remedies on behalf of individuals with

developmental disabilities through

litigation or legal action pursuant to

section 142(a)(2)(A)(i) and (h)(1) of the

Act (1994 Amendments). We are adding

a new paragraph (e) to address section

142(a)(2)(J) of the Act regarding hiring

freezes, reductions in force, or

prohibitions on staff travel. For

paragraph (f) we are proposing that a

Protection and Advocacy System may

exercise their authority under State law

where the authority exceeds the

authority required by the

Developmental Disabilities Act.

However, the Protection and Advocacy

System must have at least the authority

required under the Act, and may have

additional authority granted by the

State.

Section 1386.22 is being added to

establish a new section for the

Protection and Advocacy Systems

regarding Public Notice of Federal

Onsite Review pursuant to section

142(k) of the 1994 Amendments. Prior

to any Federal review of the State

program, a 30 day notice and an

opportunity for public comment must

be provided. As this activity is an ongoing administrative function, such

notice will not be given through the

Federal Register.

In § 1386.23, Periodic reports:

Protection and Advocacy System, we

are proposing to revise the title from

‘‘system’’ to ‘‘agency’’. Also, we are

deleting the current language contained

in paragraph (a) regarding assurances of

compliance as such records are on file.

Paragraph (a) now proposes regulations

regarding the submission of the

Protection and Advocacy annual report.

We are proposing that the report

submitted by the Protection and

Advocacy agency be submitted by

January 1 of each year in a format

designated by the Secretary to ensure

uniform reporting on the activities and

accomplishments carried out under the

system during the previous year for the

Report to Congress. An Information

Collection Request for Reinstatement

will be submitted to OMB. In

§ 1386.23(b) editorial changes are being

proposed regarding the financial report

to incorporate a reference to the

Administration for Children and

Families rather than the Office of

Human Development Services. This

Information Collection is an approved

OMB document. We are proposing to

include new requirements in paragraphs

(c) and (d) to address the annual

statement of objectives and priorities of

the Protection and Advocacy system

pursuant to section 142(a)(2)(C) of the

Act (42 U.S.C. 6042(a)(2)(C)) and section

107(b) of the Act (42 U.S.C. 6006(b)).

ADD will be submitting an Information

Collection Request to OMB. ADD is

particularly interested in receiving

comments on the public review and

comment process for this report because

we want to make sure that individuals

with developmental disabilities and

their families influence the

development and are aware of the

Protection and Advocacy priorities so

they know what they can expect from

the Protection and Advocacy System.

In § 1386.24 Non-allowable costs for

the Protection and Advocacy System,

we are revising paragraph (a) to replace

‘‘persons’’ with developmental

disabilities to ‘‘individuals’’ with

developmental disabilities in (a)(1) and

renumbering current paragraph (b) as

(a)(2). We are proposing a new

paragraph (b) on attorneys fees being

considered as program income and as

such, must be used to further the

objectives of the program pursuant to

section 142(h)(2) of the Act (1990 and

1994 Amendments).

The Administration on

Developmental Disabilities encourages a

Protection and Advocacy System to use

program standards for self-evaluations

and peer consultations to identify the

need for technical assistance or other

quality enhancement intervention.

Performance standards include all

applicable statutory and regulatory

requirements as well as standards of

quality developed in collaboration with

a committee of representatives of State

Protection and Advocacy Systems.

In part 1386, subpart C will read—

State Plan for Assisting in the

Development of a Comprehensive

System of Services and Supports for

Individuals with Developmental

Disabilities. We are proposing to revise

the title to more accurately reflect how

the provision of service related activities

and supports are tied to the State Plan

(1994 Amendments).

In § 1386.30, State plan requirements,

we are proposing to revise and include

new regulatory language to clarify the

respective roles and responsibilities of

the State Developmental Disabilities

Council and the Designated State

Agency. Pursuant to section 124(c)(3) of

the Act (42 U.S.C. 6024(c)(3)), we are

proposing language in § 1386.30(a) to

require that the development and

submission of the State plan is the

responsibility of the State

Developmental Disabilities Council and

that the State Developmental

Disabilities Council will consult with

the Designated State Agency before

submitting the State plan to ensure that

the State plan is not in conflict with

applicable State laws. Paragraph (a) also

indicates that the designated State

agency shall provide assurances and

support services to the Council pursuant

to section 124(d)(3)(A) (42 U.S.C.

6024(c)(3)) of the Act.

We are proposing to revise paragraph

(c)(1) to delete the language

‘‘administration of the plan’’ and

indicate that the State plan must

identify the program unit(s) within the

Designated State Agency responsible for

providing assurances and fiscal and

other support services. We are then

proposing in paragraph (c)(3) to include

language that the State Plan must

address how the Developmental

Disabilities network in the State (i.e.,

Developmental Disabilities Councils;

Protection and Advocacy System and

University Affiliated Program(s)) is

working with the disabilities

community to bring about broad

systems change to benefit individuals

with developmental disabilities, and,

where applicable, the ways in which

individuals with other disabilities may

benefit as well. The current State Plan

guideline has OMB approval. ADD will

prepare an Information Collection

Request to OMB based on the new

requirements of the 1994 Amendments.

We are proposing to include new

regulatory language in § 1386.30(e) to

address section 124(c)(4)(A)—

Demonstration of New Approaches

(1994 Amendments). The State Plan

may provide for funding of projects to

demonstrate new approaches to enhance

the independence, productivity, and

integration and inclusion into the

community of individuals with

developmental disabilities. Such

projects are not to exceed three years in

duration and may include assistance in

developing strategies for securing funds

for continuation of the project from

sources other than funds received under

the Act. This requirement is based on

our experience in administering the

Developmental Disabilities Program. We

are then proposing to rename current

paragraphs (e) to (f) in § 1386.30. We are
26780 Federal Register / Vol. 60, No. 96 / Thursday, May 18, 1995 / Proposed Rules

removing the regulation on individual

habilitation plan pursuant to the 1994

Amendments and moving human rights

(current (e)(3) to the new (f)(2)). We are

proposing a new paragraph (3) to

address the accessibility of buildings

used in connection with activities

assisted under the Plan to ensure that

individuals with disabilities are able to

participate in the work of the Council.

In § 1386.30(f)(4) we are proposing new

language to address the responsibility of

the State Developmental Disabilities

Council regarding budgeting, staff hiring

and supervision and staff assignment

pursuant to section 124(c) (8), (9), and

(10)) of the Act (42 U.S.C. 6024(c) (8),

(9), and (10)). Of particular note, we are

clarifying that the intended meaning of

the phrase in the statute, ‘‘consistent

with state law’’ means that the hiring of

State Developmental Disabilities

Council staff must be done in

accordance with State personnel

policies and procedures, except that a

State shall not apply hiring freezes,

reduction 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 Council from

carrying out its functions under the Act.

In § 1386.31, Plan submittal and

approval, we are proposing to add a new

paragraph (a) in response to section

122(d)(1) of the Act (1994 Amendments)

on a public review and comment

process on the State Plan. We

subsequently renumbered the current

paragraphs and revised paragraph (b) to

reference a ‘‘final State Plan’’ or

‘‘amendment(s)’’ to incorporate the

public comment process.

In § 1386.32, Periodic Reports: Basic

State grants, we are proposing to revise

the title to read § 1386.32 Periodic

reports: Federal assistance to State

Developmental Disabilities Councils

(1994 Amendments). In § 1386.32(a) an

editorial change is being made to

reference the Administration for

Children and Families. ADD will submit

an Information Collection Reinstatement

Request to OMB for this requirement. In

§ 1386.32(b) we are proposing to revise

the regulatory language to reference the

Annual Program Performance Report

(annual report requirements pursuant to

section 107(a) of the Act (42 U.S.C.

6006(a)), thus requiring a format

designated by the Secretary. Use of a

uniform format will facilitate Council

reporting, ADD data collection and

analysis, and preparation of the

Secretary’s Annual Report to Congress.

ADD will prepare an Information

Collection Reinstatement Request to

OMB for this requirement.

In § 1386.33, Protection of employee’s

interests, we are revising paragraph (a)

to update the statutory references to

section 122(c)(5)(K) of the Act (1994

Amendments) and to replace the phrase

‘‘alternative community living

arrangements’’ to ‘‘community living

activities.’’ In a new § 1386.34, entitled

‘‘Designated State Agency’’, we propose

regulations in response to section

124(d)(2)(D) of the Act (1994

Amendments) on the redesignation of

the Designated State Agency and the

right to appeal by non-State agency

members of the State Developmental

Disabilities Council to the Assistant

Secretary. (The Secretary has delegated

the authority to hear such appeals to the

Assistant Secretary for Children and

Families.) We are proposing an editorial

change to the heading of § 1386.35 to

read, ‘‘Allowable and non-allowable

costs for Federal assistance to State

Developmental Disabilities Councils’’

and an editorial change to paragraph

(b)(1) to change the word ‘‘persons’’ to

‘‘individuals’’. We are then proposing to

add a new paragraph (d) to clarify

implementation of the non-Federal

share requirements. We are also

proposing an editorial change to the

heading of § 1386.36 to read, ‘‘Final

disapproval of the State plan or plan

amendments’’ and in paragraph (e) an

editorial change is being proposed to

incorporate the reference to the

Assistant Secretary for Children and

Families rather than the Assistant

Secretary for Human Development

Services. Finally, we are proposing a

new § 1386.37, Public Notice of Federal

Onsite Review for the State

Developmental Disabilities Councils.

This requirement complements

§ 1386.22, Public Notice of Federal

Onsite Review for the Protection and

Advocacy Systems. ADD wants to

ensure that individuals with

developmental disabilities are aware

and have an opportunity to comment on

the actions of the Council. Prior to a

Federal review of the State program a 30

day notice and an opportunity for

public comment must be provided. As

this activity is an on-going

administrative function, the notice is

not being given through the Federal

Register.

The Administration on

Developmental Disabilities encourages

State Developmental Disabilities

Councils to use program standards in

self-evaluations and peer consultations

to identify the need for technical

assistance or other quality enhancement

intervention. Performance standards

include all applicable statutory and

regulatory requirements as well as

standards of quality developed in

collaboration with a committee of

representatives of State Developmental

Disabilities Councils.

In part 1386, subpart D—Practice and

Procedure for Hearings Pertaining to

States’ Conformity and Compliance with

Developmental Disabilities State Plans,

Reports and Federal Requirements, we

are proposing an editorial change in

§ 1386.80 Definitions, to incorporate the

reference to the Administration for

Children and Families rather than the

Office of Human Development Services;

clarify that the term ‘‘Presiding officer’’

means anyone designated by the

Assistant Secretary to conduct any

hearing held under this subpart; and

include a definition of the term

‘‘payment or allotment’’ for subpart D.

The term ‘‘payment or allotment’’ is

being introduced into the regulations in

order to ensure uniformity in the

terminology used in subpart D to refer

to assistance provided to States under

Part B or C of the Act. In § 1386.85,

Filing and service of papers, in

paragraph (a) the phrase ‘‘HDS Hearing

Clerk’’ is being replaced with

‘‘designated individual’’ to incorporate

Administration for Children and

Families procedures. As part of the

notice of hearing, the Assistant

Secretary will designate an individual to

receive all papers filed in connection

with a proceeding under subpart D.

In § 1386.90, Notice of hearing or

opportunity for hearing, we are making

editorial changes which include: the full

reference to the State Developmental

Disabilities Council; changing the

Protection and Advocacy Office to the

Protection and Advocacy System; and

reference the designated official rather

than official for the Protection and

Advocacy System. In § 1386.92, Place,

we are including language on

accessibility regarding the place of the

hearing. In § 1386.93, Issues at hearing,

we are making an editorial change to

paragraph (c)(2)(i) by deleting the (i).

Also, the reference to ‘‘the report of the

description of the State protection and

advocacy system’’ in paragraphs (c)(2)

and (d) are being deleted because the

Act no longer requires such a report. In

paragraph (c)(2), we are substituting

references to ‘‘the activities of the

State’s protection and advocacy system’’

and providing that a ‘‘document

explaining changes in the activities of

the State’s Protection and Advocacy

System on which the State and the

Assistant Secretary have settled must be

sent to the parties.’’ In paragraph (d), we

are clarifying the reference to the State

plan under part B of the Act and adding

a reference to the activities of the State’s

Protection and Advocacy System.
Federal Register / Vol. 60, No. 96 / Thursday, May 18, 1995 / Proposed Rules 26781

In § 1386.94, Request to participate in

hearing, the following changes are being

proposed in paragraphs (a), (b)(2) and

(c)(1). The full reference of the State

Developmental Disabilities Council is

being included along with updating the

language to reference the Protection and

Advocacy program as a ‘‘System’’ rather

than an ‘‘Office.’’ The wording ‘‘HDS

Hearing Clerk’’ is being replaced with

‘‘designated individual.’’ We are

proposing editorial changes in

§ 1386.101, Authority of presiding

officer, in paragraphs (a)(11) and (c).

Also, we are updating the references in

§ 1386.111 Decisions following hearing,

paragraphs (c) and (d) and § 1386.112

Effective date of decision by the

Assistant Secretary, paragraphs (a) and

(b) to reflect amendments to the Act and

to make other editorial changes. The

references to ‘‘report for the State

Protection and Advocacy system’’ are

being deleted because the Act no longer

requires such a report. In its place we

are substituting references to ‘‘the

activities of the State’s Protection and

Advocacy System’’ in §§ 1386.111(c)(1)

and 1386.112(b). The terms ‘‘Federal

financial participation,’’ ‘‘the State’s

total allotment,’’ ‘‘further payments,’’

‘‘payments,’’ ‘‘allotment’’ and ‘‘Federal

funds’’ in § 1386.111(c) and § 1386.112

(a) and (b) are being replaced by the

term ‘‘payment or allotment’’ which will

be defined in the proposed revision of

§ 1386.80. In § 1386.111(c)(1), we are

changing the reference to ‘‘sections 122,

127 and 142’’ to ‘‘sections 122, 127 or

142.’’ This change is necessary because

the provision applies to hearings held

under any of the three provisions and

not only to hearings held under all three

provisions. In § 1386.111(c)(2), we are

substituting a reference to section 127

for the current reference to section 135,

which has been removed from the Act.

We are also substituting a reference to

section 129 for the current reference in

§ 1386.111(d) to section 138.

In § 1386.112(a), we are substituting a

reference to section 122 for the reference

to section 135, which has been removed

from the Act. Section 122 is the correct

reference because the provision covers

hearings relating to the conformity of

State plans with Federal requirements.

In § 1386.112(b), we are substituting

references to sections 127 and 142 for

the current references to sections 113

and 133, which have been removed

from the Act. Section 127 is the correct

reference because the provision covers

hearings relating to the State’s

compliance with the requirements of the

State plan.

PART 1387—PROJECTS OF

NATIONAL SIGNIFICANCE

We are proposing to revise regulatory

language in Part 1387—Projects of

National Significance, § 1387.1, General

requirements. In paragraph (a), we

propose to change the phrase ‘‘the

developmentally disabled,’’ to

‘‘individuals with developmental

disabilities’’ as indicated in the 1994

Amendments. Regarding the

announcement on proposed priorities,

paragraph (b) requires a statutory update

(1994 Amendments). In paragraph (d),

we are proposing language to more

clearly define the type of project ADD

would consider for funding with this

limited amount of discretionary money.

We are proposing that Projects of

National Significance, other than

technical assistance and data collection,

must be exemplary and innovative

models and have potential for

replication at the local level as well as

nationally, or otherwise meet the goals

of Part E of the Act.

PART 1388—UNIVERSITY AFFILIATED

PROGRAMS

We are proposing to revise regulatory

language in Part 1388—The University

Affiliated Programs by updating the

standards (section 153(b) of the Act—

1994 Amendments). The current

standards for UAPs were published in

the Federal Register on November 20,

1987. As stated in the Conference

Report on S. 1284, the description of the

purpose and scope of UAPs has been

revised to incorporate updated concepts

about these university-based programs.

‘‘The description of UAPs recognizes

the fact that UAPs are located in, or

affiliated with universities, and, as such,

provide an important foundation for

higher education’s response to the needs

of individuals with developmental

disabilities and their families. UAPs

contribute to and reflect the overall

mission of their host universities, and

seek to ensure that the activities,

resources, and expertise of the

university are responsive to individuals

with developmental disabilities and

their families, advocacy organizations,

and service systems and providers.’’

Therefore, ADD is proposing to revise

the standards to reflect this new

description of UAPs (section 151 of the

Act—Purpose and Scope of Activities,

1994 Amendments). The standards will

continue to ‘‘reflect the special needs of

all individuals with developmental

disabilities who are of various ages’’ as

required in section 153(b).

The proposed program criteria are the

basic requirements that a UAP must

meet if it is to receive a grant under this

program. They relate to: (1) The mission

of the UAP; (2) the governance and

administration of the program; (3)

preparation of personnel; (4) services

and supports regarding community

training and technical assistance (direct

services-optional); and (5)

dissemination of information and

research findings. For each area, there is

an introductory statement found at

paragraph (a) and the program criteria

begin with paragraph (b). Compliance

with the program criteria is a

prerequisite for the minimum funding

level of a university affiliated program.

However, compliance with the program

criteria does not, by itself, constitute an

assurance of funding. The

Administration on Developmental

Disabilities is particularly interested in

receiving comments on the proposed

program criteria.

Also, the Administration on

Developmental Disabilities will be

issuing draft Guidelines, at a later date,

to provide examples of Indicators of

Conformance with the Program Criteria.

These indicators would illustrate the

types of measures which could be used

to demonstrate that the program criteria

have been achieved. The Administration

on Developmental Disabilities plans to

use the indicators of conformance as a

technical assistance/partnership model

with University Affiliated Programs to

further program outcomes.

We are proposing to revise § 1388.1

Definitions, to indicate what is now

meant by ‘‘program criteria’’ and are

deleting the definitions for ‘‘qualitative

criteria’’ and ‘‘measurements of program

outcome’’. In addition, we are defining

other terms as used in part 1388. For

example, ‘‘accessible’’, ‘‘capacity

building’’ and ‘‘collaboration’’. Section

1388.2 Program criteria—purpose

remains unchanged. We are deleting all

the current regulatory language of

§ 1388.3 Program criteria—

administration, § 1388.5 Program

criteria—training, § 1388.6 Program

criteria—technical assistance, and

§ 1388.7 Program criteria—information

dissemination. Of particular note,

regarding the dissemination of

information, we are proposing that

materials disseminated by the UAP

must be available in formats accessible

to individuals with a wide range of

disabilities, e.g., audiotape and

computer disk. We are proposing

changes to the current regulations found

in § 1388.4 Program criteria—services.

Section 1388.6 Program criteria—

services and supports, paragraph (c),

will now cover Direct Services. These

regulations are optional because the

requirement that UAP’s provide direct
26782 Federal Register / Vol. 60, No. 96 / Thursday, May 18, 1995 / Proposed Rules

services is now optional pursuant to

section 151 of the Act (1994

Amendments). As the 1994

Amendments deleted the authority for

Satellite Centers, § 1388.8 Use of

program criteria for Satellite Centers is

being deleted and reserved. Finally, we

are revising the current regulations,

§ 1388.9 Peer Review to incorporate

changes from the 1994 Amendments

(section 153(f)(2)). Paragraph (a)

describes the purpose of the peer

review. The reference to Satellite

Centers has been deleted and the

provision of including on-site visits or

inspection as necessary has been

included. Paragraph (b) has been revised

to simply state that applications for

funding opportunities under part D,

Section 152 of the Act, must be

evaluated through the peer review

process. In paragraph (c), language is

being revised regarding the composition

of the panel which is to be composed of

non-Federal individuals who, by

experience and training, are highly

qualified to assess the comparative

quality of applications for assistance.

Impact Analysis

Executive Order 12866

Executive Order 12866 requires that

regulations be reviewed to ensure that

they are consistent with the priorities

and principles set forth in the Executive

Order. The Department has determined

that this rule is consistent with these

priorities and principles. An assessment

of the costs and benefits of available

regulatory alternatives (including not

regulating) demonstrated that the

approach taken in the regulation is the

most cost-effective and least

burdensome while still achieving the

regulatory objectives.

The NPRM proposes to amend current

regulation to implement changes made

by the Developmental Disabilities

Assistance and Bill of Rights Act

Amendments of 1990 (Pub. L. 101–496

and by the 1994 Amendments (Pub. L.

103–230). The regulations propose to

provide guidance on redesignation of

the Protection and Advocacy System

and the appeal process; include

regulations on the Protection and

Advocacy annual statement of

objectives; address State Developmental

Disabilities Council responsibilities and

those of the Designated State Agency;

set new program standards for the

University Affiliated Program; and make

other clarifying, technical, and

conforming changes.

We estimate that these regulations

will not result in additional costs to the

Federal government, the States,

universities and any other organizations

to which they may apply.

Regulatory Flexibility Act of 1980

Consistent with the Regulatory

Flexibility Act (5 U.S.C. Ch.6), we try to

anticipate and reduce the impact of

rules and paperwork requirements on

small businesses. For each rule with a

‘‘significant economic impact on a

substantial number of small entities’’,

we prepare an analysis describing the

rule’s impact on small entities. The

primary impact of these regulations is

on the States, which are not ‘‘small

entities’’ within the meaning of the Act.

However, they will affect small private

institutions providing services to

individuals with developmental

disabilities. This impact will be

minimal in that the institutions will

simply be subject to review at no cost

when a complaint is made against them.

For these reasons, the Secretary certifies

that these rules will not have a

significant impact on a substantial

number of small entities.

Paperwork Reduction Act

Under the Paperwork Reduction Act

of 1980, Pub.L. 96–511, all Departments

are required to submit to the Office of

Management and Budget (OMB) for

review and approval any reporting or

recordkeeping requirement contained in

a proposed or final rule.

This proposed rule contains a new

information collection requirement at

§ 1386.23(c), an annual statement of

objectives and priorities of the

Protection and Advocacy system

pursuant to section 142(a)(2)(C) of the

Act (42 U.S.C. 6042(a)(2)(C)). As

required, ADD will submit this new

information collection requirement to

OMB for review. The other sections

(listed below) which are being amended

in this proposed rule contain

information collection requirements,

some are already approved by OMB,

while others will require reinstatement

to OMB due to requirements from the

1994 Amendments. Organizations and

individuals desiring to submit

comments on the new information

collection requirement should direct

them to the agency official designated

for this purpose whose name appears in

this preamble, and to the Office of

Information and Regulatory Affairs,

OMB, New Executive Office Building

(Room 3002), Washington, DC 20503.

ATTN: Desk Officer for HHS/ACF.

REPORTING AND RECORDKEEPING REQUIREMENTS IN PART 1386 OF THE NPRM

Sec. No. Impact OMB No.

Annual

number of

respondents

Annual burden hours

1386.23(a) .. Existing (OMB approval expired, re-approval to be requested) ..................................... 0980–0160 56 2,240

1386.23(b) .. Existing ............................................................................................................................ 0348–0039 56 112

1386.23(c) .. New ................................................................................................................................. N/A 56 2,800

1386.30(c) .. Existing ............................................................................................................................ 0980–0162 56 5,600

1386.32(a) .. Existing (OMB approval expired, re-approval to be requested) ..................................... 0980–0212 672 2,912

1386.32(b) .. Existing (OMB approval expired, re-approval to be requested) ..................................... 0980–0172 55 4,400

There will be no specified format for

the submittal of the State plan and

assurances required in § 1386.30. States

may select any format they wish as long

as they meet the requirements in the Act

and these regulations.

Recordkeeping and Reporting

requirements for Part 1387 and part

1388 will be satisfied with the

submission of an acceptable grant

application. The discretionary

programs, Projects of National

Significance (part 1387) and University

Affiliated Programs (part 1388) use the

OMB approved Standard Form 424

series, Application for Federal

Assistance and Budget Information.

List of Subjects

45 CFR Part 1385

Disabled, Grant programs/education,

Grant programs/social programs,

Reporting and recordkeeping

requirements.

45 CFR Part 1386

Disabled, Administrative practice and

procedure, Grant programs/education,
Federal Register / Vol. 60, No. 96 / Thursday, May 18, 1995 / Proposed Rules 26783

Grant programs/social programs,

Reporting and recordkeeping

requirements.

45 CFR Part 1387

Disabled, Grant programs/education,

Grant programs/social programs.

45 CFR Part 1388

Colleges and universities, Grant

programs/education, Grant programs/

social programs, satellite center,

university affiliated program.

(Catalog of Federal Domestic Assistance

Program, Nos. 93.630 Developmental

Disabilities Basic Support and 93.631

Developmental Disabilities—Projects of

National Significance, and 93.632

Developmental Disabilities—University

Affiliated Program)

Approved: April 25, 1995.

Mary Jo Bane,

Assistant Secretary for Children and Families.

For the reasons set forth in the

preamble, subchapter I, chapter XIII, of

title 45 of the Code of Federal

Regulations is proposed to be amended

as follows:

SUBCHAPTER I—THE ADMINISTRATION

ON DEVELOPMENTAL DISABILITIES,

DEVELOPMENTAL DISABILITIES

PROGRAM

PART 1385—REQUIREMENTS

APPLICABLE TO THE

DEVELOPMENTAL DISABILITIES

PROGRAM

1. The authority citation for part 1385

continues to read as follows:

Authority: 42 U.S.C. 6000 et seq.

2. Section 1385.1 is amended by

revising paragraphs (a) and (b) and

republishing the introductory text to

read as follows:

§ 1385.1 General.

Except as specified in § 1385.4, the

requirements in this part are applicable

to the following programs and projects:

(a) Federal Assistance to State

Developmental Disabilities Councils;

(b) Protection and Advocacy of the

Rights of Individuals with

Developmental Disabilities;

* * * * *

3. Section 1385.3 is amended by

revising the definitions of ADD and

Commissioner and adding

alphabetically a definition for ACF, and

Protection and Advocacy System, to

read as follows:

§ 1385.3 Definitions.

* * * * *

ACF means the Administration for

Children and Families within the

Department of Health and Human

Services.

* * * * *

ADD means the Administration on

Developmental Disabilities, within the

Administration for Children and

Families.

Commissioner means the

Commissioner of the Administration on

Developmental Disabilities,

Administration for Children and

Families, Department of Health and

Human Services or his or her designee.

* * * * *

Protection and Advocacy System

means the organization or agency

designated in a State to administer and

operate a protection and advocacy

program for individuals with

developmental disabilities under part C

of the Developmental Disabilities

Assistance and Bill of Rights Act, as

amended by Pub. L. 103–230 (42 U.S.C.

6041, 6042); and advocacy programs

under the Protection and Advocacy for

Mentally Ill Individuals Act of 1986

(PAIMI Act), as amended, (42 U.S.C.

10801 et seq.) the Protection and

Advocacy of Individual Rights Program

(PAIR), (29 U.S.C. 794(e); and the

Technology-Related Assistance for

Individuals With Disabilities Act of

1988, as amended (29 U.S.C. 2212(e)).

Protection and Advocacy System also

may be designated by the Governor of a

State to conduct the Client Assistance

Program (CAP) authorized by section

112 of the Rehabilitation Act of 1973, as

amended, (29 U.S.C. 732). Finally, the

Protection and Advocacy System may

provide advocacy services under other

Federal programs.

* * * * *

4. Section 1385.4 is revised to read as

follows:

§ 1385.4 Rights of individuals with

developmental disabilities.

(a) Section 110 of the Act, Rights of

Individuals with Developmental

Disabilities (42 U.S.C. 6009) is

applicable to the programs authorized

under the Act, except for the Protection

and Advocacy System.

(b) In order to comply with section

122(c)(5)(G) of the Act (42 U.S.C.

6022(c)(5)(G)), regarding the rights of

individuals with developmental

disabilities, the State must meet the

requirements of 45 CFR 1386.30(e)(3).

(c) Applications from university

affiliated programs or for projects of

national significance grants must also

contain an assurance that the human

rights of individuals assisted by these

programs will be protected consistent

with section 110 (see section 153(c)(3)

and section 162(c)(3) of the Act).

§ 1385.5 [Removed and reserved]

5. Section 1385.5, Recovery of Federal

funds used for construction of facilities

is removed and reserved.

6. Section 1385.6 is revised to read as

follows:

§ 1385.6 Employment of individuals with

disabilities.

Each grantee which receives Federal

funding under the Act must meet the

requirements of section 109 of the Act

(42 U.S.C. 6008) regarding affirmative

action. The grantee must take

affirmative action to employ and

advance in employment and otherwise

treat qualified individuals with

disabilities without discrimination

based upon their physical or mental

disability in all employment practices

such as the following: Employment,

upgrading, demotion or transfer,

recruitment, advertising, layoff or

termination, rates of pay or other forms

of compensation, and selection for

training, including apprenticeship. This

obligation is in addition to the

requirements of 45 CFR part 84, subpart

B, prohibiting discrimination in

employment practices on the basis of

disability in programs receiving

assistance from the Department.

Recipients of funds under the Act also

may be bound by the provisions of the

Americans with Disabilities Act (Pub. L.

101–336, 42 U.S.C. 12101 et seq.) with

respect to employment of individuals

with disabilities. Failure to comply with

section 109 of the Act may result in loss

of Federal funds under the Act. If a

compliance action is taken, the State

will be given reasonable notice and an

opportunity for a hearing as provided in

subpart D of 45 CFR part 1386.

§ 1385.7 [Removed and reserved]

7. Section 1385.7 Waivers, is removed

and reserved.

8. Section 1385.8 is amended by

revising the introductory text to read as

follows:

§ 1385.8 Formula for determining

allotments.

The Commissioner will allocate funds

appropriated under the Act for the State

Developmental Disabilities Councils

and the Protection and Advocacy

Systems on the following basis:

* * * * *

9. Section 1385.9 is amended by

revising the first sentence of paragraph

(a); revising paragraphs (b), (c), and (d)

and adding a new paragraph (e) to read

as follows:

§ 1385.9 Grants administration

requirements.

(a) The following parts of title 45 CFR

apply to grants funded under parts 1386
26784 Federal Register / Vol. 60, No. 96 / Thursday, May 18, 1995 / Proposed Rules

and 1388 of this chapter and to grants

for Projects of National Significance

under section 162 of the Act (42 U.S.C.

6082).

* * * * *

(b) The Departmental Appeals Board

also has jurisdiction over appeals by

grantees which have received grants

under the University Affiliated program

or for Projects of National Significance.

The scope of the Board’s jurisdiction

concerning these appeals is described in

45 CFR part 16.

(c) The Departmental Appeals Board

also has jurisdiction to decide appeals

brought by the States concerning any

disallowances taken by the

Commissioner with respect to specific

expenditures incurred by the States or

by contractors or subgrantees of States.

This jurisdiction relates to funds

provided under the two formula

programs—part B of the Act—Federal

Assistance to State Developmental

Disabilities Councils and part C of the

Act—Protection and Advocacy of the

Rights of Individuals with

Developmental Disabilities. Appeals

filed by States shall be decided in

accordance with 45 CFR part 16.

(d) In making audits, examinations,

excerpts and transcripts of records for

the State Developmental Disabilities

Councils, the University Affiliated

programs, and the Projects of National

Significance grantees and subgrantees,

as provided for in 45 CFR part 74 and

part 92, the Department will keep

information about individual clients

confidential to the extent permitted by

law and regulations.

(e) (1) In making any periodic audit,

report, or evaluation of the performance

of the Protection and Advocacy System,

the Secretary does not require the

Protection and Advocacy System to

disclose the identity of, or any other

personally identifiable information

related to, any individual requesting

assistance under the program.

(2) However, notwithstanding

paragraph (e)(1) of this section, if an

audit, monitoring review, evaluation, or

other investigation by the Department

produces evidence that the System has

violated the Act or the regulations, the

System will bear the burden of proving

its compliance. The System’s inability

to establish compliance because of the

confidentiality of records will not

relieve it of this responsibility. The

eligible system may elect to obtain a

release from all individuals requesting

or receiving services at the time of

intake or application. The release shall

state that only information directly

related to client and case eligibility will

be subject to disclosure to officials of

the Department.

PART 1386—FORMULA GRANT

PROGRAMS

10. The authority citation for part

1386 continues to read as follows:

Authority: 42 U.S.C. 6000 et seq.

Subpart A—Basic Requirements

11. Section 1386.1 is revised to read

as follows:

§ 1386.1 General.

All rules under this subpart are

applicable to both the State

Developmental Disabilities Councils

and the Protection and Advocacy

System.

12. Section 1386.2 is amended by

revising paragraphs (b)(1) and (c) to read

as follows:

§ 1386.2 Obligation of funds.

* * * * *

(b) (1) A State incurs an obligation for

acquisition of personal property or for

the performance of work on the date it

makes a binding, legally enforceable,

written commitment, or when the State

Developmental Disabilities Council

enters into an Interagency Agreement

with an agency of State government for

acquisition of personal property or for

the performance of work.

* * * * *

(c) (1) The Protection and Advocacy

System may elect to treat entry of an

appearance in judicial and

administrative proceedings on behalf of

an individual with a developmental

disability as a basis for obligating funds

for the litigation costs. The amount of

the funds obligated must not exceed a

reasonable estimate of the costs, and the

way the estimate was calculated must be

documented.

(2) For the purpose of this paragraph,

litigation costs means expenses for court

costs, depositions, expert witness fees,

travel in connection with a case and

similar costs and costs resulting from

litigation in which the agency has

represented an individual with

developmental disabilities (e.g.

monitoring court orders, consent

decrees), but not for salaries of

employees of the Protection and

Advocacy System. All funds made

available for Federal Assistance to State

Developmental Disabilities Councils

and to the Protection and Advocacy

System obligated under this paragraph

are subject to the requirement of

paragraph (a) of this section. These

funds, if reobligated, may be reobligated

only within a two year period beginning

with the first day of the Federal fiscal

year in which the funds were originally

awarded.

§ 1386.4 [Removed and reserved]

13. Section 1386.4, Eligibility for

services is removed and reserved.

14. The heading of subpart B is

revised to read as follows:

Subpart B—State System for

Protection and Advocacy of the Rights

of Individuals With Developmental

Disabilities

15. A new § 1386.19 is added to

include definitions as follows:

§ 1386.19 Definitions.

As used in §§ 1386.20 and 1386.21 of

this part the following definitions apply:

Designating official means the

Governor, or other State official, who is

empowered by the Governor or State

legislature to designate the State official

or public or private agency to be

accountable for the proper use of funds

by the State Protection and Advocacy

System.

Full investigations means the access

to clients, public and private facilities

and entities and their staff, and the

records regarding the operation of the

institution that is necessary for a

reasonable person to make an informed

decision about whether the alleged or

suspected abuse is taking place or has

taken place.

Probable cause means a reasonable

ground for belief that an individual or

group of individuals with

developmental disabilities may now be

subject to or have been subject to abuse

or neglect. The reported existence of

conditions or problems that are usually

associated with abuse and neglect will

be Probable Cause.

Record of an individual with a

developmental disability 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.

16. Section 1386.20 is amended by

revising the heading; revising

paragraphs (a), (d), and (e); and adding

a new paragraph (f) to read as follows:

§ 1386.20 Designated State Protection and

Advocacy System.

(a) The designating official must

designate the State official or public or

private agency to be accountable for the

proper use of funds and conduct of the

State Protection and Advocacy System.

* * * * *
Federal Register / Vol. 60, No. 96 / Thursday, May 18, 1995 / Proposed Rules 26785

(d)(1) Prior to any redesignation of the

agency which administers and operates

the State Protection and Advocacy

System, the designating official must

give notice of the intention to make the

redesignation to the agency currently

administering and operating the State

Protection and Advocacy System by

registered or certified mail. The

designating official must also publish a

public notice of the proposed action.

The agency and the public shall have a

reasonable period of time, but not less

than 45 days to respond to the notice.

(2) The public notice must include:

(i) The Federal requirements for the

Protection and Advocacy system for

individuals with developmental

disabilities (section 142 of the Act); and,

where applicable, the requirements of

the Protection and Advocacy for

Individuals with Mental Illness Act of

1986, as amended, (42 U.S.C. 10805 and

10821); the Protection and Advocacy of

Individual Rights Program (29 U.S.C.

794(e) and the Client Assistance

Program (29 U.S.C. 732), of the

Rehabilitation Act of 1973, as amended;

the Technology-Related Assistance for

Individuals Act of 1988, as amended by

Pub.L. 103–218 (Protection and

Advocacy contracts and grants); or any

other Federal advocacy program that is

administered by the State Protection

and Advocacy System.

(ii) The goals and function of the

State’s Protection and Advocacy System

including the current Statement of

Objectives and Priorities;

(iii) The name and address of the

agency currently designated to

administer and operate the Protection

and Advocacy System; and an

indication of whether the agency also

operates other Federal advocacy

programs;

(iv) A description of the current

Protection and Advocacy agency and

the system it administers and operates

including, as applicable, descriptions of

other Federal advocacy programs it

operates;

(v) A clear and detailed explanation of

the good cause for the proposed

redesignation;

(vi) A statement suggesting that

interested persons may wish to write the

current State Protection and Advocacy

agency at the address provided in

paragraph (d)(2)(iii) of this section to

obtain a copy of its response to the

notice required by paragraph (d)(1) of

this section. Copies shall be provided in

accessible formats to individuals with

disabilities upon request.

(vii) The name of the new agency

proposed to administer and operate the

Protection and Advocacy System under

the Developmental Disabilities program.

This agency will be eligible to

administer other Federal advocacy

programs.

(viii) A description of the system

which the new agency would

administer and operate, including a

description of all other Federal

advocacy programs the agency would

operate; and

(ix) The timetable for assumption of

operations by the new agency and the

estimated costs of any transfer and startup operations.

(3) The public notice, as required by

paragraph (d)(1) of this section, must be

in a format accessible to individuals

with developmental disabilities or their

representatives, e.g., tape, diskette. The

designating official or entity must

provide for publication of the notice of

the proposed redesignation using the

State register, State-wide newspapers,

public service announcements on radio

and television, or any other legally

equivalent process. Copies of the notice

must be made generally available to

individuals with developmental

disabilities and mental illness who live

in residential facilities through posting

or some other means.

(4) After the expiration of the public

comment period required in paragraph

(d)(1) of this section, the designating

official must conduct a public hearing

on the redesignation proposal. After

consideration of all public and agency

comments, the designating official or

entity must give notice of the final

decision to the currently designated

agency and the public through the same

means used under paragraph (d)(3) of

this section. If the notice to the

currently designated agency states that

the redesignation will take place, it also

must inform the agency of its right to

appeal this decision to the Assistant

Secretary, Administration for Children

and Families. The redesignation shall

not be effective until 10 working days

after notifying the current Protection

and Advocacy agency or, if the agency

appeals, until the Assistant Secretary

has considered the appeal.

(e)(1) Following notification pursuant

to paragraph (d)(4) of this section, the

Protection and Advocacy agency which

is the subject of such action may appeal

the redesignation to the Assistant

Secretary. To do so, the Protection and

Advocacy agency must submit an

appeal in writing to the Assistant

Secretary within 10 working days of

receiving official notification under

paragraph (d)(4) of this section, with a

separate copy sent by registered or

certified mail to the designating official

or entity which made the decision

concerning redesignation.

(2) In the event that the agency subject

to redesignation does exercise its right

to appeal under paragraph (e)(1) of this

section, the designating official or entity

must give public notice of the Assistant

Secretary’s final decision regarding the

appeal through the same means utilized

under paragraph (d)(3) of this section

within 10 days of receipt of the

Assistant Secretary’s final decision

under paragraph (e)(6) of this section.

(3) The designating official or entity

within 10 working days from the receipt

of a copy of the appeal must provide

written comments to the Assistant

Secretary (with a copy sent by registered

or certified mail to the Protection and

Advocacy agency appealing under

paragraph (e)(1) of this section), or

withdraw the redesignation. The

comments must include a summary of

the public comments received in

response to the public notice concerning

the proposed redesignation under

paragraph (d)(2) of this section, the

results of the hearing provided for under

paragraph (d)(4) of this section, and may

provide any additional relevant

information.

(4) In the event that the designating

official withdraws the redesignation

while under appeal pursuant to

paragraph (e)(1) of this section, the

designating official must notify the

Assistant Secretary, and the current

agency, and must give public notice of

his or her decision through the same

means utilized under paragraph (d)(3) of

this section.

(5) As part of their submission under

paragraph (e)(1) or (e)(3) of this section,

either party may request, and the

Assistant Secretary may grant, an

opportunity for an informal meeting

with the Assistant Secretary at which

representatives of both parties will

present their views on the issues in the

appeal. The meeting will be held within

20 working days of the submission of

written comments by the designating

official or entity under paragraph (e)(2)

of this section. The Assistant Secretary

will promptly notify the parties of the

date and place of the meeting.

(6) Within 30 days of the informal

meeting under paragraph (e)(5) of this

section, or, if there is no informal

meeting under paragraph (e)(5) of this

section, within 30 days of the

submission under paragraph (e)(3) of

this section, the Assistant Secretary will

issue to the parties a final written

decision on whether the redesignation

was for good cause. Redesignation for

good cause may include, but is not

limited to, eliminating longstanding or

pervasive inefficiency and correcting

unacceptable performance. The

Assistant Secretary will consult with
26786 Federal Register / Vol. 60, No. 96 / Thursday, May 18, 1995 / Proposed Rules

Federal advocacy programs that will be

directly affected by the proposed

redesignation in making a final decision

on the appeal.

(f)(1) Within 30 days after the

redesignation becomes effective under

paragraph (d)(4) of this section, the

designating official must submit an

assurance to the Assistant Secretary that

the newly designated Protection and

Advocacy agency meets the

requirements of the statute and the

regulations.

(2) In the event that the Protection

and Advocacy agency subject to

redesignation does not exercise its rights

to appeal within the period provided

under paragraph (e)(1) of this section,

the designating official must provide to

the Assistant Secretary documentation

that the agency was redesignated for

good cause. Such documentation must

clearly demonstrate that the Protection

and Advocacy agency subject to

redesignation was not redesignated for

any actions or activities which were

carried out under section 142 of the Act,

these regulations or any other Federal

advocacy program’s legislation or

regulations.

17. Section 1386.21 is revised to read

as follows:

§ 1386.21 Requirements of the Protection

and Advocacy System.

(a) In order for a State to receive

Federal financial participation for

Protection and Advocacy activities

under this subpart, as well as the State

Developmental Disabilities Council

activities (subpart C), the Protection and

Advocacy System must meet the

requirements of section 142 of the Act

(42 U.S.C. 6042) and that system must

be operational.

(b) The client’s record is the property

of the Protection and Advocacy agency

which must protect it from loss,

damage, tampering, or use by

unauthorized individuals. The

Protection and Advocacy agency must:

(1) Keep confidential all information

contained in a client’s records, which

includes, but is not limited to,

information contained in an automated

data bank. For purposes of any periodic

audit, report, or evaluation required

under the Act, the Secretary shall not

require a program to disclose the

identify of, or any other personally

identifiable information related to, any

individual requesting assistance under

such program. This regulation does not

limit access by parents or legal

guardians of minors unless prohibited

by State or Federal law, court order or

the rules of attorney-client privilege;

(2) Have written policies governing

access to, storage of, duplication of, and

release of information from the client’s

record; and

(3) Obtain written consent from the

client, if competent, or his or her

guardian, before it releases information

to individuals not otherwise authorized

to receive it.

(c) (1) A Protection and Advocacy

System must have access to records of

an individual with a developmental

disability, including a person who is no

longer living, as provided by section

142(a)(2)(I) of the Act and the authority

necessary to conduct full investigations

of abuse and neglect on the Protection

and Advocacy System’s determination

of probable cause or if the incidents are

reported to the System.

(2) A Protection and Advocacy

System must have trained staff to

conduct full investigations of abuse and

neglect upon the System’s

determination of probable cause or if the

incidents are reported to the System.

(3) Protection and Advocacy Systems

must have authority to have access at

reasonable times and locations to

residents of any private or public

facility that is providing services,

supports, and other assistance to such

residents as provided in section

142(a)(2)(H) of the Act. Systems must

also have authority to have access at

reasonable times and locations to staff of

private or public facilities when

investigating incidents of abuse and

neglect under the authority required in

section 142(a)(2)(B).

(4) Protection and Advocacy systems

must be authorized to keep confidential

the names and identity of individuals

who report incidents of abuse and

neglect and individuals who furnish

information that forms the basis for a

determination that probable cause

exists.

(d) A Protection and Advocacy

System shall not implement a policy or

practice restricting the remedies which

may be sought on the behalf of

individuals with developmental

disabilities or compromising the

authority of the Protection and

Advocacy System to pursue such

remedies through litigation, legal action

or other forms of advocacy.

(e) A 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 mandates under

the Act.

(f) A Protection and Advocacy System

may exercise its authority under State

law where the authority exceeds the

authority required by the

Developmental Disabilities Assistance

and Bill of Rights Act, as amended.

However, State law must not diminish

the required authority of the Protection

and Advocacy System.

18. Section 1386.22 is added to read

as follows:

§ 1386.22 Public notice of Federal onsite

review.

Prior to any Federal review of the

State program, a 30 day notice and an

opportunity for public comment must

be provided. Reasonable effort shall be

made by the appropriate Regional Office

to seek comments through notification

to major disability advocacy groups, the

State Bar, other disability law resources,

the State Developmental Disabilities

Council and the University Affiliated

Program, for example, through

newsletters and publications of those

organizations. The findings of public

comments may be consolidated if

sufficiently similar issues are raised and

they shall be included in the report of

the onsite visit.

19. Section 1386.23 is revised to read

as follows:

§ 1386.23 Periodic reports: Protection and

Advocacy System.

(a) By January 1 of each year the

Protection and Advocacy System shall

submit an Annual Program Performance

Report as required in section 107(b) of

the Act, in a format designated by the

Secretary.

(b) Financial status reports must be

submitted by the Protection and

Advocacy Agency according to a

frequency interval specified by the

Administration for Children and

Families. In no case will such reports be

required more frequently than quarterly.

(c) By August 15 of each year, the

Protection and Advocacy System shall

submit an Annual Statement of

Objectives and Priorities for the coming

fiscal year as required under section

142(a)(2)(C) of the Act. It shall include:

(1) The rationale for the Statement;

(2) A budget for the System’s

operations for the next fiscal year;

(3) Documentation of the process and

outcome of soliciting public input as

described in paragraph (d) of this

section;

(4) An explanation of how public

comments were reflected either in the

Statement of Objectives and Priorities or

were not reflected, and if not, why;

(5) A description of how the

Protection and Advocacy System

operates and how it coordinates the

Protection and Advocacy program for

individuals with developmental

disabilities with the following Federal

Advocacy programs: Protection and

Advocacy of Individual Rights program
Federal Register / Vol. 60, No. 96 / Thursday, May 18, 1995 / Proposed Rules 26787

(PAIR) and Client Assistance Program,

(CAP), (Rehabilitation Act), the Long

Term Care Ombudsman program (Older

Americans Act), the Protection and

Advocacy System for Mentally Ill

Individuals program (PAIMI),

(Protection and Advocacy for the

Mentally Ill Act), Assistive Technology

Protection and Advocacy Projects

(Technology-Related Assistance for

Individuals with Disabilities Technical

Assistance Act) and State

Developmental Disabilities Council and

UAP advocacy activities. This

description must address the System’s

intake process, internal and external

referrals of eligible clients, duplication

and overlap of services and eligibility,

streamlining of advocacy services,

collaboration and sharing of information

on service needs and development of

Statements of Objectives and Priorities

for the various advocacy programs; and

(6) A description of the procedures

used for informing individuals with

developmental disabilities, their

families, disability organizations, the

State Bar Association, other disability

law resources and the public of the

Protection and Advocacy’s priorities

and services including use of referrals to

other sources of legal advocacy.

(d) Each fiscal year, the Protection

and Advocacy Agency shall:

(1) Obtain formal public input on its

Statement of Objectives and Priorities;

(2) At a minimum, publish a proposed

Statement of Objectives and Priorities

for the next fiscal year in a publication

of general distribution and make it

accessible to individuals with

developmental disabilities and their

representatives, allowing at least 45

days from the date of publication for

comment;

(3) Provide to the State

Developmental Disabilities Council and

the University Affiliated Program a copy

of the proposed Statement of Objectives

and Priorities for comments

concurrently with the public notice;

(4) Address any comments received

through the public input and any input

received from the State Developmental

Disabilities Council and the University

Affiliated Program in the final

Statement submitted to the Department;

and

(5) Address how the State

developmental disabilities network (the

Protection and Advocacy System; State

Developmental Disabilities Council; and

the University Affiliated Program) will

collaborate with each other and with

public and private entities outside the

developmental disabilities network.

(Information collection requirements

regarding the report referenced in paragraph

(a) will require an Information Collection Reapproval Request to be prepared by ADD.

Previous Office of Management and Budget

control number was 0980–0160. The

requirements under paragraph (b) are

approved under control number 0348–0039

by the Office of Management and Budget.

Information collection requirements

contained in paragraph (c) are new

requirements pursuant to section 142(a)(2)(C)

and section 107(b) of the Act. This

information will require Office of

Management and Budget approval).

20. Section 1386.24 is amended by

revising paragraph (a), redesignating

paragraph (b) as (a)(2); and adding a

new paragraph (b) to read as follows:

§ 1386.24 Non-allowable costs for the

Protection and Advocacy System.

(a) Federal financial participation is

not allowable for:

(1) Costs incurred for activities on

behalf of individuals with

developmental disabilities to solve

problems not directly related to their

disabilities and which are faced by the

general populace; and

(2) * * *

(b) Attorneys fees are considered

program income pursuant to Part 74—

Administration of Grants and Part 92—

Uniform Administrative Requirements

for Grants and Cooperative Agreements

to State and Local Governments and

must be added to the funds committed

to the program and used to further the

objectives of the program. This

requirement shall apply to all attorneys

fees, including those received after the

project period in which they were

earned.

21. The heading of subpart C is

revised to read as follows:

Subpart C—State Plan for Assisting in

the Development of a Comprehensive

System of Services and Supports for

Individuals With Developmental

Disabilities

22. Section 1386.30 is amended by

revising paragraphs (a) and (c)(1);

redesignating paragraph (e) as (f);

revising newly redesignated paragraphs

(f) (2), (3), and (4); and adding new

paragraphs (c)(3) and (e) to read as

follows:

§ 1386.30 State Plan requirements.

(a) In order to receive Federal

financial assistance under this subpart,

each State Developmental Disabilities

Council must prepare and must submit

to the Secretary and have in effect a

State Plan which meets the

requirements of sections 122 and 124 of

the Act (42 U.S.C. 6022 and 6024) and

these regulations. The development of

the State Plan and applicable annual

amendments, is the responsibility of the

State Developmental Disabilities

Council. The State Developmental

Disabilities Council will provide

opportunities for public input during

planning and development of the State

Plan. In addition, the State

Developmental Disabilities Council will

consult with the Designated State

Agency before the State Plan is

submitted to the Secretary to ensure that

the State Plan is not in conflict with

applicable State laws. The Designated

State Agency shall provide support

services as requested by and negotiated

with the Council.

* * * * *

(c) * * *

(1) Identify the program unit(s) within

the Designated State Agency responsible

for providing assurances and fiscal and

other support services.

* * * * *

(3) Describe how the Developmental

Disabilities network in the State (i.e.,

Developmental Disabilities Council,

Protection and Advocacy System, and

University Affiliated programs(s)) is

working with the disabilities

community to bring about broad

systems change to benefit individuals

with developmental disabilities, and,

where applicable, the ways in which

individuals with other disabilities may

benefit as well.

* * * * *

(e) The State Plan may provide for

funding of projects to demonstrate new

approaches to enhance the

independence, productivity, and

integration and inclusion into the

community of individuals with

developmental disabilities. Such

projects are not to exceed three years in

duration and may include assistance in

developing strategies for securing funds

for continuation of the project from

sources other than funds received under

the Act.

(f) The State Plan must contain

assurances that:

* * * * *

(2) The human rights of individuals

with developmental disabilities will be

protected consistent with section 110 of

the Act (42 U.S.C. 6009).

(3) Buildings used in connection with

activities assisted under the Plan must

meet all applicable provisions of

Federal and State laws pertaining to

accessibility, fire, health and safety

standards.

(4) The State Developmental

Disabilities Council shall follow the

requirements of section 124(c)(8), (9)

and (10) regarding budgeting, staff

hiring and supervision and staff

assignment. Budget expenditures must

be consistent with applicable State laws
26788 Federal Register / Vol. 60, No. 96 / Thursday, May 18, 1995 / Proposed Rules

and policies regarding grants and

contracts and proper accounting and

bookkeeping practices and procedures.

In relation to staff hiring, the clause

‘‘consistent with State law’’ means that

the hiring of State Developmental

Disabilities Council staff must be done

in accordance with State personnel

policies and procedures, except that a

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 Council from

carrying out its functions under the Act.

(Information collection requirements

contained in paragraph (a) are approved by

the Office of Management and Budget under

control number 0980–0162. ADD will

prepare an Information Collection Request to

OMB based on the new requirements of the

1994 Amendments.)

23. Section 1386.31 is amended by

redesignating the current paragraphs (a),

(b), (c), and (d) as (b), (c), (d) and (e);

adding a new paragraph (a); and

revising the newly redesignated

paragraph (b) as follows:

§ 1386.31 State Plan submittal and

approval.

(a) The public review process for the

State Plan required by Section 122(d)(1)

of the Act shall include at least:

(1) Issuance of a public notice,

announcing from the Governor or the

Governor’s designee, the availability of

the proposed State Plan or State Plan

amendment. The notice shall be

published in formats accessible to

individuals with disabilities (e.g., tape,

diskette) and the general public, and

shall provide a 45 day period for public

review and comment.

(2) Provisions for addressing and

incorporating significant comments or

suggestions about the proposed State

Plan. Councils will consider and

respond to suggestions which call for

elimination, substitution, or addition of

a Plan goal or objective. Councils will

also respond to questions or comments

about the use of Federal funds or other

resources.

(3) Upon completion of the tasks

required by paragraphs (a) (1) and (2) of

this section and submission of a State

Plan to the Regional Office, issuance of

a second public notice, also in formats

accessible to individuals with

disabilities (e.g., tape, diskette) and the

general public, on the availability of the

State Plan or Plan amendments.

Councils may use the second public

notice as the vehicle for responding to

questions or comments referred to in

paragraph (a)(2) of this section.

(b) The final State Plan and, where

applicable, State Plan amendments,

must be submitted to the appropriate

Regional office of the Department 45

days prior to the fiscal year for which

it is applicable. Unless State law

provides differently, the State Plan and

amendments or related documents must

be approved by the Governor or the

Governor’s designee as may be required

by any applicable Federal issuance.

* * * * *

24. Section 1386.32 is revised to read

as follows:

§ 1386.32 Periodic reports: Federal

assistance to State Developmental

Disabilities Councils.

(a) The Governor or the appropriate

State financial officer must submit

financial status reports on the programs

funded under this subpart according to

a frequency interval which will be

specified by the Administration for

Children and Families. In no case will

such reports be required more

frequently than quarterly.

(b) By January 1 of each year an

Annual Program Performance Report

must be submitted, as required in

section 107(a) of the Act (42 U.S.C.

6006a), in a format designated by the

Secretary.

(Information collection requirements

contained in paragraphs (a) and (b) have

expired and will require an Information

Collection Re-approval Request to be

prepared by ADD. Previous Office of

Management and Budget control number for

paragraph (a) was 0980–0212 and for

paragraph (b) was 0980–0172. The

Information Collection Request for Reapproval concerning the reports will be

modified pursuant to the 1994 Amendments).

25. Section 1386.33 is amended by

revising paragraph (a) as follows:

§ 1386.33 Protection of employee’s

interests.

(a) Based on section 122(c)(5)(K) of

the Act (42 U.S.C. 6022(c)(5)(K), the

State plan must provide for fair and

equitable arrangements to protect the

interest of all institutional employees

affected by actions under the plan to

provide community living activities.

Specific arrangements for the protection

of affected employees must be

developed through negotiations between

the appropriate State authorities and

employees or their representatives. Fair

and equitable arrangements must

include procedures that provide for the

impartial resolution of disputes between

the State and an employee concerning

the interpretation, application, and

enforcement of protection arrangements.

The State must inform employees of the

State’s decision to provide for

community living activities.

* * * * *

26. Section 1386.34 is added to read

as follows:

§ 1386.34 Designated State Agency.

(a) If the State Developmental

Disabilities Council requests a review by

the Governor (or legislature) of the

Designated State Agency, the Council

must provide documentation of the

reason for change and recommend a

preferred Designated State Agency.

(b) After the review is completed, a

majority of the non-State agency

members of the Council may appeal to

the Assistant Secretary for a review of

the designation of the designated State

agency if the Council’s independence as

an advocate is not assured because of

the actions or inactions of the

designated State agency.

(c) The following steps apply to the

appeal of the Governor’s (or

legislature’s) determination of the

Designated State Agency.

(1) Prior to an appeal to the Assistant

Secretary, Administration for Children

and Families, the State Developmental

Disabilities Council, at the request of the

non-State Agency members, must give a

30 day written notice, by certified mail,

to the Governor (or legislature) of the

majority of non-State members’

intention to appeal the designation of

the Designated State Agency.

(2) The appeal must clearly identify

the grounds for the claim that the

Council’s independence as an advocate

is not assured because of the actions or

inactions of the designated State agency.

(3) Upon receipt of the appeal from

the State Developmental Disabilities

Council, the Assistant Secretary will

notify the State Developmental

Disabilities Council and the Governor

(or legislature), by certified mail, that

the appeal has been received and will be

acted upon within 60 days. The

Governor (or legislature) shall within 10

working days from the receipt of the

Assistant Secretary’s notification

provide written comments to the

Assistant Secretary (with a copy sent by

registered or certified mail to the

Council) on the claims in the Council’s

appeal. Either party may request, and

the Assistant Secretary may grant, an

opportunity for an informal meeting

with the Assistant Secretary at which

representatives of both parties will

present their views on the issues in the

appeal. The meeting will be held within

20 working days of the submission of

written comments by the Governor (or

legislature). The Assistant Secretary will

promptly notify the parties of the date

and place of the meeting.
Federal Register / Vol. 60, No. 96 / Thursday, May 18, 1995 / Proposed Rules 26789

(4) The Assistant Secretary will

review the issue(s) and provide a final

written decision within 60 days

following receipt of the State

Developmental Disabilities Council’s

appeal. If the determination is made that

the Designated State Agency should be

redesignated, the Governor (or

legislature) must provide written

assurance of compliance within 45 days

from receipt of the decision.

(5) During any time of this appeals

process the State Developmental

Disabilities Council may withdraw such

request if resolution has been reached

with the Governor (or legislature) on the

designation of the Designated State

Agency. The Governor (or legislature)

must notify the Assistant Secretary in

writing of such an occurrence.

27. Section 1386.35 is amended by

revising the heading and paragraph

(b)(1) and adding new paragraphs (d),

(e), and (f) to read as follows:

§ 1386.35 Allowable and non-allowable

costs for Federal assistance to State

Developmental Disabilities Councils.

* * * * *

(b) * * *

(1) Costs incurred by institutions or

other residential or non-residential

programs which do not comply with the

Congressional findings with respect to

the rights of individuals with

developmental disabilities in section

110 of the Act (42 U.S.C. 6009).

* * * * *

(d) For purposes of determining

aggregate minimum State share of

expenditures, there are three categories

of expenditures:

(1) Expenditures for priority area

projects carried out directly by the

Council and Council staff, as described

in section 125A(a)(2) of the Act,

requiring no non-Federal aggregate

participation;

(2) Expenditures for priority area

projects in poverty areas but not carried

out directly by the Council and Council

staff, as described in section 125A(a)(1)

of the Act, requiring a minimum of 10

percent non-Federal aggregate

participation; and

(3) All other expenditures, requiring a

minimum of 25 percent non-Federal

aggregate participation.

(e) As a consequence of paragraph (d)

of this section, the minimum aggregate

non-Federal expenditure required under

the Act is calculated as the sum of:

(1) One-ninth of Federal expenditures

for projects in poverty areas, such

projects not being directly carried out by

the Council and Council staff; and

(2) Plus one-third of all other Federal

expenditures except those supporting

priority area activities directly carried

out by the Council and Council staff.

(f) The non-Federal expenditures

must support activities authorized by

the Act and approved by the Council,

but may include non-Federal support

for implementation activities pursuant

to section 125A(a)(2) of the Act, as well

as functions of the designated State

agency.

28. Section 1386.36 is amended by

revising the section heading and

paragraph (e) to read as follows:

§ 1386.36 Final disapproval of the State

plan or plan amendments.

* * * * *

(e) A State has filed its request for a

hearing with the Assistant Secretary

within 21 days of the receipt of the

decision. The request for a hearing must

be sent by certified mail to the Assistant

Secretary. The date of mailing the

request is considered the date of filing

if it is supported by independent

evidence of mailing, otherwise the date

of receipt shall be considered the date

of filing.

29. Section 1386.37 is added to read

as follows:

§ 1387.37 Public notice of Federal onsite

review.

Prior to any Federal review of the

State Developmental Disabilities

Council, a 30 day notice and an

opportunity for comment will be

provided. Reasonable effort will be

made by the appropriate Regional Office

to seek comments through notification

to major disability groups, the State

Protection and Advocacy agency and

the University Affiliated Program, for

example, through newsletters and

publications of those organizations. The

findings of public comments may be

consolidated if sufficiently similar

issues are raised and they will be

included in the report of the onsite visit.

Subpart D—Practice and Procedure for

Hearings Pertaining to States’

Conformity and Compliance With

Developmental Disabilities State Plans,

Reports and Federal Requirements

30. Section 1386.80 is revised to read

as follows:

§ 1386.80 Definitions.

For purposes of this subpart:

Assistant Secretary means the

Assistant Secretary for Children and

Families (ACF) or a presiding officer.

ADD means Administration on

Developmental Disabilities,

Administration for Children and

Families.

Presiding officer means anyone

designated by the Assistant Secretary to

conduct any hearing held under this

subpart. The term includes the Assistant

Secretary if the Assistant Secretary

presides over the hearing.

Payment or Allotment means an

amount provided under Part B or C of

the Developmental Disabilities

Assistance and Bill of Rights Act. This

term includes Federal funds provided

under the Act irrespective of whether

the State must match the Federal

portion of the expenditure. This term

shall include funds previously covered

by the terms ‘‘Federal financial

participation,’’ ‘‘the State’s total

allotment,’’ ‘‘further payments,’’

‘‘payments,’’ ‘‘allotment’’ and ‘‘Federal

funds.’’

31. Section 1386.85 is amended by

revising paragraph (a) to read as follows:

§ 1386.85 Filing and service of papers.

(a) All papers in the proceedings must

be filed with the designated individual

in an original and two copies. Only the

originals of exhibits and transcripts of

testimony need be filed.

* * * * *

32. Section 1386.90 is revised to read

as follows:

§ 1386.90 Notice of hearing or opportunity

for hearing.

Proceedings are commenced by

mailing a notice of hearing or

opportunity for hearing from the

Assistant Secretary to the State

Developmental Disabilities Council and

the Designated State Agency, or to the

State Protection and Advocacy System

or designated official. The notice must

state the time and place for the hearing,

and the issues which will be

considered. The notice must be

published in the Federal Register.

33. Section 1386.92 is revised to read

as follows:

§ 1386.92 Place.

The hearing must be held on a date

and at a time and place determined by

the Assistant Secretary with due regard

for convenience, and necessity of the

parties or their representatives. The site

of the hearing shall be accessible to

individuals with disabilities.

34. Section 1386.93 is amended by

revising paragraphs (c)(2) and (d) to read

as follows:

§ 1386.93 Issues at hearing.

* * * * *

(c) * * *

(2) Prior to the removal of an issue, in

whole or in part, from a hearing

involving issues relating to the

conformity with Federal requirements

under Part B of the Act, of the State plan

or the activities of the State’s Protection
26790 Federal Register / Vol. 60, No. 96 / Thursday, May 18, 1995 / Proposed Rules

and Advocacy System, the Assistant

Secretary must provide all parties other

than the Department and the State (see

§ 1386.94(b)) with the statement of his

or her intention to remove an issue from

the hearings and the reasons for that

decision. A copy of the proposed State

plan provision or document explaining

changes in the activities of the State’s

protection and advocacy system on

which the State and the Assistant

Secretary have settled must be sent to

the parties. The parties must have an

opportunity to submit in writing within

15 days their views as to, or any

information bearing upon, the merits of

the proposed provision and the merits

of the reasons for removing the issue

from the hearing.

(d) In hearings involving questions of

noncompliance of a State’s operation of

its program under Part B of the Act with

the State plan or with Federal

requirements or compliance of the

State’s Protection and Advocacy System

with Federal requirements, the same

procedure set forth in paragraph (c)(2) of

this section must be followed with

respect to any report or evidence

resulting in a conclusion by the

Assistant Secretary that a State has

achieved compliance.

* * * * *

35. Section 1386.94 is amended by

revising paragraphs (a), (b)(2), and (c) to

read as follows:

§ 1386.94 Request to participate in

hearing.

(a) The Department, the State, the

State Developmental Disabilities

Council, the Designated State Agency,

and the State Protection and Advocacy

System, as appropriate, are parties to the

hearing without making a specific

request to participate.

(b) * * *

(2) Any individual or group wishing

to participate as a party must file a

petition with the designated individual

within 15 days after notice of the

hearing has been published in the

Federal Register, and must serve a copy

on each party of record at that time in

accordance with § 1386.85(b). The

petition must concisely state:

(i) Petitioner’s interest in the

proceeding;

(ii) Who will appear for petitioner;

(iii) The issues the petitioner wishes

to address; and

(iv) Whether the petitioner intends to

present witnesses.

* * * * *

(c)(1) Any interested person or

organization wishing to participate as

amicus curiae must file a petition with

the designated individual before the

commencement of the hearing. The

petition must concisely state:

(i) The petitioner’s interest in the

hearing;

(ii) Who will represent the petitioner,

and

(iii) The issues on which the

petitioner intends to present argument.

(2) The presiding officer may grant the

petition if he or she finds that the

petitioner has a legitimate interest in the

proceedings, that such participation will

not unduly delay the outcome and may

contribute materially to the proper

disposition of the issues.

(3) An amicus curiae may present a

brief oral statement at the hearing at the

point in the proceedings specified by

the presiding officer. It may submit a

written statement of position to the

presiding officer prior to the beginning

of a hearing and must serve a copy on

each party. It also may submit a brief or

written statement at such time as the

parties submit briefs and must serve a

copy on each party.

36. Section 1386.101 is amended by

revising paragraphs (a)(11) and (c) to

read as follows:

§ 1386.101 Authority of presiding officer.

(a) * * *

(11) If the presiding officer is a person

other than the Assistant Secretary, he or

she shall certify the entire record,

including recommended findings and

proposed decision, to the Assistant

Secretary;

* * * * *

(c) If the presiding officer is a person

other than the Assistant Secretary, his or

her authority is to render a

recommended decision with respect to

program requirements which are to be

considered at the hearing. In case of any

noncompliance, he or she shall

recommend whether payments or

allotments should be withheld with

respect to the entire State plan or the

activities of the State’s Protection and

Advocacy System, or whether the

payments or allotments should be

withheld only with respect to those

parts of the program affected by such

noncompliance.

37. Section 1386.111 is amended by

revising paragraphs (c) and (d) to read

as follows:

§ 1386.111 Decisions following hearing.

* * * * *

(c) If the Assistant Secretary

concludes:

(1) In the case of a hearing pursuant

to sections 122, 127, or 142 of the Act,

that a State plan or the activities of the

State’s Protection and Advocacy System

does not comply with Federal

requirements, he or she shall also

specify whether the State’s payment or

allotment for the fiscal year will not be

authorized for the State or whether, in

the exercise of his or her discretion, the

payment or allotment will be limited to

the parts of the State plan or the

activities of the State’s Protection and

Advocacy System not affected by the

noncompliance.

(2) In the case of a hearing pursuant

to section 127 of the Act that the State

is not complying with the requirements

of the State plan, he or she must also

specify whether the State’s payment or

allotment will not be made available to

the State or whether, in the exercise of

his or her discretion, the payment or

allotment will be limited to the parts of

the State plan not affected by such

noncompliance. The Assistant Secretary

may ask the parties for

recommendations or briefs or may hold

conferences of the parties on these

questions.

(d) The decision of the Assistant

Secretary under this section is the final

decision of the Secretary and constitutes

‘‘final agency action’’ within the

meaning of 5 U.S.C. 704 and the

‘‘Secretary’s action’’ within the meaning

of section 129 of the Act (42 U.S.C.

6029). The Assistant Secretary’s

decision must be promptly served on all

parties and amici.

38. Section 1386.112 is amended by

revising paragraphs (a) and (b) to read

as follows:

§ 1386.112 Effective date of decision by

the Assistant Secretary.

(a) If, in the case of a hearing pursuant

to section 122 of the Act, the Assistant

Secretary concludes that a State plan

does not comply with Federal

requirements, and the decision provides

that the payment or allotment will be

authorized but limited to parts of the

State plan not affected by such

noncompliance, the decision must

specify the effective date for the

authorization of the payment or

allotment.

(b) In the case of a hearing pursuant

to sections 127 or 142 of the Act, if the

Assistant Secretary concludes that the

State is not complying with the

requirements of the State plan or the

activities of the State’s Protection and

Advocacy System do not comply with

Federal requirements, the decision that

further payments or allotments will not

be made to the State, or will be limited

to the parts of the State plan or activities

of the State’s Protection and Advocacy

System not affected, must specify the

effective date for withholding payments

of allotments.

* * * * *
Federal Register / Vol. 60, No. 96 / Thursday, May 18, 1995 / Proposed Rules 26791

PART 1387—PROJECTS OF

NATIONAL SIGNIFICANCE

39. The authority citation for part

1387 continues to read as follows:

Authority: 42 U.S.C. 6000 et seq.

40. Section 1387.1 is being amended

by revising paragraphs (a), (b), and (d)

to read as follows:

§ 1387.1 General requirements.

(a) All projects funded under this part

must be of national significance and

serve or relate to individuals with

developmental disabilities to comply

with section 162 of the Act.

(b) Based on section 162(d), proposed

priorities for grants and contracts will

be published in the Federal Register

and a 60 day period for public

comments will be allowed.

* * * * *

(d) Projects of National Significance,

other than technical assistance and data

collection grants, must be exemplary

and innovative models and have

potential for replication at the local

level as well as nationally or otherwise

meet the goals of part E of the Act.

41. Part 1388 is revised to read as

follows:

PART 1388—THE UNIVERSITY

AFFILIATED PROGRAMS

Sec.

1388.1 Definitions.

1388.2 Program criteria—purpose.

1388.3 Program criteria—mission.

1388.4 Program criteria—governance and

administration.

1388.5 Program criteria—preparation of

personnel.

1388.6 Program criteria—services and

supports.

1388.7 Program criteria—dissemination.

1388.8 [Reserved].

1388.9 Peer review.

Authority: 42 U.S.C. 6063 et seq.

§ 1388.1 Definitions.

For purposes of this part:

Accessible means UAPs are

characterized by their program and

physical accommodation and their

demonstrated commitment to the goals

of the Americans with Disabilities Act.

Capacity Building means that UAPs

utilize a variety of approaches to

strengthen their university and their

local, State, regional and National

communities. These approaches

include, but are not limited to such

activities as: (1) Enriching program

depth and breadth, for example,

recruiting the dental school to

participate in the UAP; (2) acquiring

additional resources, for example,

grants, space, and volunteer manpower;

and (3) carrying out systems changes,

for example, promoting communitybased programming for persons with

developmental disabilities across all

ages.

Collaboration means that the UAP

cooperates with a wide range of persons,

systems, and agencies, whether they

utilize services of the UAP or are

involved in UAP planning and

programs. These entities include

individuals with developmental

disabilities and family members, as well

as the Developmental Disabilities

Network, advocacy and other disability

groups, university components, generic

and specialized human service agencies,

State agencies and citizen and

community groups. An example of this

cooperation is the Consumer Advisory

Committee, a required element in each

UAP.

Culturally competent manner means

provision of services, supports, or other

assistance in a manner that is

responsive to the beliefs, interpersonal

styles, attitudes, language and behaviors

of individuals who are receiving

services, and that has the greatest

likelihood of ensuring their maximum

participation in the program.

Diverse network means that although

each UAP has the same mandates under

the Act, the expression of these common

mandates differs across programs. Each

UAP must implement these mandates

within the context of their host

university, their location within the

university, the needs of the local and

State community, the cultural

composition of their State, their

resources and funding sources, and their

institutional history. These factors

converge to create a network of unique

and distinct programs, bound together

by common mandates but enriched by

diverse composition.

Interdisciplinary training means the

use of individuals from different

professional specialties for UAP training

and service delivery.

Lifespan approach means that UAP

activities address the needs of

individuals with disabilities who are of

various ages.

Mandated core functions means the

UAP must perform: (1) Interdisciplinary

preservice preparation; (2) community

service activities (community training

and technical assistance); and (3)

activities related to dissemination of

information and research findings.

Program criteria means a statement of

the Department’s expectation regarding

the direction and desired outcome of the

University Affiliated Program’s

operation.

State-of-the-art means that UAP

activities are of high quality (using the

latest technology), worthy of replication

(consistent with available resources),

and systemically evaluated.

§ 1388.2 Program criteria—purpose.

The program criteria will be used to

assess the quality of the University

Affiliated Programs (UAP). The overall

purpose of the program criteria is to

assure the promotion of independence,

productivity, integration and inclusion

of individuals with developmental

disabilities. Compliance with the

program criteria is a prerequisite for a

UAP to receive the minimum funding

level of a UAP. However, compliance

with the program criteria does not, by

itself, assure funding.

§ 1388.3 Program criteria—mission.

(a) Introduction to mission: The

purpose and scope of UAP activities

must be consistent with the Act as

amended and include the provision of

training, service, technical assistance

and dissemination of information in a

culturally competent manner. UAPs

must include in their activities the

underserved, and provide for

meaningful participation of individuals

from diverse racial and ethnic

backgrounds. UAP principles and

operations must be consistent with the

UAP’s mission statement. (The concept

of ‘‘diverse network’’ as defined in

§ 1388.1 of this part applies to

paragraphs (b), (f), (g), and (h) of this

section.)

(b) The UAP must develop a written

mission statement that reflects its values

and the goals of the university in which

it is located. The UAP’s goals, objectives

and activities must be consistent with

the mission statement.

(c) The UAP’s mission and programs

must reflect a life span approach,

incorporate an interdisciplinary

approach and include the active

participation of individuals with

developmental disabilities and their

families.

(d) The UAP programs must address

the needs of individuals with

developmental disabilities, including

individuals with developmental

disabilities who are unserved or

underserved, in institutions, and on

waiting lists.

(e) The UAP’s goals, objectives, and

activities must incorporate and

demonstrate culturally competent

services and practices, which are in

response to local culture and needs.

(f) The UAP’s mission must reflect its

unique role as a bridge between

university programs, individuals with

developmental disabilities and their

families, service agencies and the larger

community.
26792 Federal Register / Vol. 60, No. 96 / Thursday, May 18, 1995 / Proposed Rules

(g) The UAP’s goals, objectives, and

activities must use capacity building

strategies to address State needs.

(h) The UAP’s goals, objectives, and

activities must reflect interagency

collaborations and strategies to effect

systemic change within the university

and in State and local communities and

service systems.

§ 1388.4 Program criteria—governance

and administration.

(a) Introduction to governance and

administration: The UAP must be

associated with, or an integral part of, a

university. (The concept of ‘‘diverse

network’’ as defined in § 1388.1 of this

part applies to paragraphs (b), (c), (d),

(i), and (l) of this section.)

(b) The UAP must have a written

agreement or charter with the university

that specifies the UAP designation as an

official university component, the

relationships between the UAP and

other university components, the

university commitment to the UAP, and

the UAP commitment to the university.

(c) Within the university, the UAP

must maintain the autonomy and

organizational structure required to

carry out the UAP mission and provide

for the mandated activities.

(d) The UAP must be responsible to

report directly to a University

administrator who will represent the

interests of the UAP within the

University.

(e) The University must demonstrate

its support for the UAP through the

commitment of financial and other

resources.

(f) UAP senior professional staff must

hold faculty appointments in

appropriate academic departments of

the host or an affiliated university,

consistent with university policy.

(g) UAP faculty and staff must

represent the broad range of disciplines

and backgrounds necessary to

implement the full inclusion of

individuals with developmental

disabilities in all aspects of society,

consonant with the spirit of the

Americans with Disabilities Act, (ADA).

(h) The UAP must meet the

requirements of section 109 of the Act

(42 U.S.C. 6008) regarding affirmative

action. The UAP must take affirmative

action to employ and advance in

employment and otherwise treat

qualified individuals with disabilities

without discrimination based upon their

physical or mental disability in all

employment practices.

(i) The management practices of the

UAP, as well as the organizational

structure, must promote the role of the

UAP as a bridge between the University

and the community. The UAP must

actively participate in community

networks and include a range of

collaborating partners.

(j) The UAP’s Consumer Advisory

Committee must meet regularly. The

membership of the Consumer Advisory

Committee must reflect the racial and

ethnic diversity of the State or

community in which the UAP is

located. The deliberations of the

Consumer Advisory Committee must be

reflected in UAP policies and programs.

(k) The UAP must maintain

collaborative relationships with the

State Developmental Disabilities

Council and the Protection and

Advocacy System. In addition, the UAP

must be a member of the State

Developmental Disabilities Council and

participate in Council meetings and

activities, as prescribed by the Act.

(l) The UAP must maintain

collaborative relationships and be an

active participant with the UAP network

and individuals, organizations, State

agencies and Universities.

(m) The UAP must demonstrate the

ability to leverage resources.

(n) The UAP must have adequate

space to carry out the mandated

activities.

(o) The UAP physical facility and all

program initiatives conducted by the

UAP must be accessible to individuals

with disabilities as provided for by

Section 504 of the Rehabilitation Act

and Titles II and III of the Americans

with Disabilities Act.

(p) The UAP must integrate the

mandated core functions into its

activities and programs and must have

a written plan for each core function

area.

(q) The UAP must have in place a

long range strategic planning capability

to enable the UAP to respond to

emergent and future developments in

the field.

(r) The UAP must utilize state-of-theart methods, including the active

participation of individuals, families

and other consumers of programs and

services to evaluate programs. The UAP

must refine and strengthen its programs

based on evaluation findings.

§ 1388.5 Program criteria—preparation of

personnel.

(a) Introduction to preparation of

personnel: UAP interdisciplinary

training programs at the preservice level

prepare personnel concerned with

developmental disabilities.

(b) Interdisciplinary training programs

must be based on identified personnel

preparation needs centered around a

conceptual framework with identified

outcomes.

(c) The interdisciplinary training

process, as defined by the UAP, must

reflect a mix of students from diverse

academic disciplines/academic

programs and cultures that reflect the

diversity of the community. Faculty

represent a variety of backgrounds and

specialties, including individuals with

disabilities and family members, and a

variety of learning experiences, as well

as reflecting the cultural diversity of the

community. Trainees must receive

credit as appropriate for participation in

UAP training programs.

(d) Preservice training must be

integrated into all aspects of the UAP,

including community training and

technical assistance, direct services (if

provided), and dissemination.

(e) Trainees must be prepared to serve

in a variety of roles, including advocacy

and systems change. The UAP must

encourage graduates to work in varied

situations, settings, or jobs.

(f) The UAP must influence

University curricula to prepare

personnel who, in their future career in

a broad range of social and community

roles, will contribute to the

accommodation and inclusion of

individuals with developmental

disabilities, as mandated in the

Americans with Disabilities Act.

(g) The UAP core curriculum must

incorporate cultural diversity and

demonstrate cultural competence.

Trainees must be prepared to address

the needs of individuals with

developmental disabilities and their

families in a culturally competent

manner.

§ 1388.6 Program criteria—services and

supports.

(a) Introduction to services and

supports: The UAP engages in a variety

of system interventions and may also

engage in a variety of individual

interventions.

(b) UAP community training and

technical assistance activities must use

capacity building strategies to

strengthen the capability of

communities, systems and service

providers.

(c) Direct Services (Optional)

(1) A UAP must integrate direct

services and projects into community

settings. These services may be

provided in a service delivery site or

training setting within the community

including the university. Direct service

projects may involve interdisciplinary

student trainees, professionals from

various disciplines, service providers,

families and/or administrators. Direct

services must be extended, as

appropriate, to include adult and

elderly individuals with developmental

disabilities.
Federal Register / Vol. 60, No. 96 / Thursday, May 18, 1995 / Proposed Rules 26793

(2) Services and projects provided in

community-integrated settings are to be:

(i) Scheduled at times and in places

that are consistent with routine

activities within the local community;

and

(ii) Interact with and involve

community members, agencies, and

organizations.

(3) The bases for the services or

project development must be:

(i) A local or universal need that

reflects critical problems in the field of

developmental disabilities; or

(ii) An emerging, critical problem that

reflects current trends or anticipated

developments in the field of

developmental disabilities.

(4) State-of-the-art and innovative

practices include:

(i) Services and project concepts and

practices that facilitate and demonstrate

independence for the individual,

community integration, productivity,

and human rights;

(ii) Practices that are economical,

accepted by various disciplines, and

highly beneficial to individuals with

developmental disabilities, and that are

integrated within services and projects;

(iii) Innovative cost-effective concepts

and practices that are evaluated

according to accepted practices of

scientific evaluation;

(iv) Research methods that are used to

test hypotheses, validate procedures,

and field test projects; and

(v) Direct service and project practices

and models that are evaluated, packaged

for replication and disseminated

through the information dissemination

component.

§ 1388.7 Program criteria—dissemination.

(a) Introduction to dissemination: The

UAP disseminates information and

research findings, including the

empirical validation of activities related

to training, services and supports, and

contributes to the development of new

knowledge.

(b) The UAP must be identified to the

community as a resource for

information, produce a variety of

products to promote public awareness

and visibility of the UAP, and facilitate

replication of best practices.

(c) Specific target audiences must be

identified for dissemination activities

and include individuals with

developmental disabilities, family

members, service providers,

administrators, policy makers,

university faculty, researchers, and the

general public.

(d) UAP dissemination activities must

be responsive to community requests for

information and must utilize a variety of

networks, including State

Developmental Disabilities Councils,

Protection and Advocacy Systems, other

University Affiliated Programs, and

State service systems to disseminate

information to target audiences.

(e) The process of developing and

evaluating materials must utilize the

input of individuals with

developmental disabilities and their

families.

(f) The values of the UAP must be

reflected in the language and images

used in UAP products.

(g) Dissemination products must

reflect the cultural diversity of the

community.

(h) Materials disseminated by the

UAP must be available in formats

accessible to individuals with a wide

range of disabilities, and appropriate

target audiences.

§ 1388.8 [Reserved]

§ 1388.9 Peer review.

(a) The purpose of the peer review

process is to provide the Commissioner,

ADD, with technical and qualitative

evaluation of UAP applications,

including on-site visits or inspections as

necessary.

(b) Applications for funding

opportunities under Part D, section 152

of the Act, must be evaluated through

the peer review process.

(c) Panels must be composed of nonFederal individuals who, by experience

and training, are highly qualified to

assess the comparative quality of

applications for assistance.

[FR Doc. 95–11910 Filed 5–17–95; 8:45 am]

BILLING CODE 4184–01–P