01-29217. Community Mental Health Services and Substance Abuse Prevention and Treatment Block Grant Maintenance of Effort Requirements: Exclusion from Future Year Calculations

In keeping with SAMHSA's delegation of authority from the Secretary for Health and Human Services (HHS) and in compliance with section 1915(b)(2) and section 1930(b) of the Public Health Service (PHS) Act as amended by Public Law 106-310, the Substance Abuse and Mental Health Services Administration published a guidance in the Federal Register (66 FR 35658) on July 6, 2001, to be used in determining whether to approve the exclusion of certain expenditures from aggregate expenditures used by the State in calculating the maintenance of effort requirement under the Community Mental Health Services (CMHS) Block Grant program and/or the Substance Abuse Prevention and Treatment (SAPT) Block Grant program.

In implementing the guidance, SAMHSA has learned that there was an unintendedly harsh consequence as a result of our stating that the funds to be excluded had to be appropriated by the State after the date of enactment of Public Law 106-310, October 17, 2000, which contained the new authority permitting the exclusion of certain expenditures. The intention of the requirement was to ensure that the new statutory authority was not applied retroactively, contrary to our understanding of the intent of the provision. In using the term “appropriated,” however, the agency inadvertently also eliminated consideration of funds that were appropriated by those States whose fiscal year 2001 began before October 17, 2000, the date of enactment of Public Law 106-310, thus creating an inequitable situation. Changing the language of the guidance to the date of expenditure rather than appropriation addresses both the issue of retroactive application and equitability.

Accordingly, we are revising the guidance by substituting in the second element of the guidance the word “expended” for the word “appropriated.” Thus funds that were appropriated by the State prior to October 17, 2000 but had not yet been expended may, in the discretion of the Administrator of SAMHSA, be considered for an exclusion.

Thus the guidance is now as follows:

“In order for SAMHSA to approve a request from a State to have excluded from the aggregate State expenditures funds appropriated by the State legislature to the principal agency for authorized activities which are of a non-recurring nature and for a specific purpose, the following is necessary:

1. The State shall request the exclusion separately from the application;

2. The request shall be signed by the State's Chief Executive Officer or by an individual authorized to apply for the SAPT or CMHS Block Grant on behalf of the Chief Executive Officer. SAMHSA will consider such requests for funds expended after the date of enactment of Public Law 106-310, October 17, 2000, in the first year for which additional funds are being added to the budget for such activities;

3. The State shall provide documentation that supports its position that the funds were appropriated by the State legislature for authorized activities which are of a non-recurring nature and for a specific purpose, indicates the length of time the project is expected to last in years and months, and affirms that these expenditures would be in addition to funds needed to otherwise meet the State's maintenance of effort requirement for the year for which it is applying for exclusion; and

4. The Administrator of SAMHSA agrees that the criteria for exclusion have been met.

Nothing in this guidance limits a State from requesting more than one exclusion in any one year. If during a particular year the State wishes to submit more than one project for exclusion, it should do so in a single request.”

Dated: November 16, 2001.

Richard Kopanda,

Executive Officer, Substance Abuse and Mental Health Administration.