[Federal Register Volume 59, Number 52 (Thursday, March 17, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-6136]
[[Page Unknown]]
[Federal Register: March 17, 1994]
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Part III
Department of Health and Human Services
_______________________________________________________________________
Administration on Aging
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45 CFR Part 1321
Grants for State and Community Programs on Aging; Proposed Rule
DEPARTMENT OF HEALTH AND HUMAN SERVICES
Administration on Aging
45 CFR Part 1321
RIN 6666-1212
Grants for State and Community Programs on Aging
AGENCY: Department of Health and Human Services (HHS), Administration
on Aging (AoA).
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: This Notice of Proposed Rulemaking (NPRM) requests comments
from the public on proposed changes to rules concerning grants for
State and community programs on aging. These changes are required to
clarify and implement Older Americans Act (Act) Sections 305(a)(2)(C),
305(a)(2)(D), 307(b)(1), 307(c), 307(d), and 307(e) as amended by the
1992 amendments to the Act. The Act now requires the Commissioner on
Aging to review and approve each State's intrastate formula for the
distribution of funds under Title III of the Act, and requires the
State to specify the bases and impact of its intrastate funding formula
on each Planning and Service Area (PSA) in its State plan.
DATES: In order to be considered, comments on this proposed rule must
be received on or before May 16, 1994.
ADDRESSES: Please address comments to: Edwin Walker, Associate
Commissioner, Office of State and Community Programs, Administration on
Aging, room 4737, 330 Independence Avenue SW., Washington, DC 20201.
Beginning 14 days after close of the comment period, comments will
be available for public inspection in room 4740, 330 Independence
Avenue SW., Washington, DC 20201, Monday through Friday between the
hours of 9 a.m. and 4 p.m.
FOR FURTHER INFORMATION CONTACT:
David Bunoski, (202) 260-0669.
SUPPLEMENTARY INFORMATION:
I. Program Background and Purpose
The Older Americans Act was first enacted in 1965 and was amended
eleven times between 1965 and 1992. The President signed the Older
Americans Act Amendments of 1992 (Pub. L. 102-375) on September 30,
1992.
On February 23, 1993, the Secretary of the Department of Health and
Human Services, Donna E. Shalala, pursuant to the authority permitted
by section 2 of Reorganization Plan No. 1 of 1953, 42 U.S.C. 3501, and
5 U.S.C. 301, designated the position of Assistant Secretary for Aging
to perform the duties and functions of the Commissioner of Aging. The
term ``Commissioner'' will be used in these regulations, however, in
order to comport with Public Law 102-375, which retains the title of
Commissioner for the head of the Administration on Aging.
The 1992 amendments to the Older Americans Act reemphasize the
intention of the Congress to target services and resources on the needs
and problems of those older individuals identified as having the
greatest economic need, the greatest social need, and those who are
low-income minority. These amendments, for the first time, require that
approval of the State plan be dependent on approval of the intrastate
funding formula. The basis of these regulations are those provisions of
the 1992 amendments to the Act that directly affect a State's
intrastate funding formula and which:
Require the Commissioner on Aging under section 304(c) of
the Act to approve a State's intrastate funding formula prior to the
release of Title III funds;
Require State agencies under section 307(a)(33) of the Act
to include descriptive statements about the intrastate funding
formula's assumptions, goals, and outcomes based on the allocation of
funds to each Planning and Service Area; and
Require the Commissioner on Aging under section
305(a)(2)(C) to assist States in the development of their intrastate
funding formulas by providing them with guidelines.
II. Purpose of the NPRM
The Administration on Aging (AoA) is proposing to revise the
current rules governing the State agencies' development and submission
of an intrastate funding formula by providing new guidance and to amend
the current rules affecting State plans and State plan submissions.
These revisions are designed to be consistent with those provisions in
the 1992 amendments to the Act that require greater targeting on those
older individuals in greatest economic need, greatest social need, and
low-income minority older individuals.
The 1992 amendments to the Older Americans Act (Pub. L. 102-375)
now require States to submit their intrastate funding formulas to the
Commissioner on Aging for approval, rather than only for review and
comment, as was the case prior to the 1992 amendments. The amendments
also require the Commissioner to provide guidance to States in the
development of their intrastate funding formulas. AoA has interpreted
the amendments to require that this guidance be in addition to the
language contained in section 305(a)(2)(C) of the statute which
requires State agencies to take into account the geographic
distribution, greatest economic and greatest social need of older
individuals in the development of their intrastate funding formulas. If
the Commissioner does not approve the intrastate funding formula, a new
requirement under section 304(c) requires the Commissioner to withhold
the State's allotment of funds.
In order to comply with these new statutory requirements as well as
address the intent of Congress that targeting services and resources on
the needs and problems of those older individuals identified as having
the greatest economic need, the greatest social need, and those who are
low-income minority be accomplished through the intrastate funding
formula, the Commissioner has developed standards for review and
provided directions to a State agency on how to evaluate whether its
formula meets those standards. The proposed regulations are designed to
provide a State agency with flexibility to either maintain its current
formula or, if necessary to allow for the development of a modified or
new formula that addresses the requirements set out by Congress in
section 305(a)(2)(C) of the Older Americans Act. These proposed
regulations require that careful consideration be given to the
geographic distribution of older individuals in the State, and the
distribution among the planning and service areas of older individuals
with greatest economic need and older individuals with greatest social
need, with particular attention to low-income minority individuals.
Section 304(c) now requires the Commissioner to withhold funds if
the Commissioner does not approve a State's intrastate funding formula.
In the course of developing these intrastate funding formulas, States
are now required, under sections 305(a)(2)(C) and 305(d), to publish
their intrastate funding formulas for review and comment by the public.
This publication for review and comment must include: ``(1) A
descriptive statement of the formula's assumptions and goals, and the
application of the definitions of greatest economic or social need; (2)
a numerical statement of the actual funding formula to be used; (3) a
listing of the population, economic, and social data to be used for
each planning and service area in the State; and (4) a demonstration of
the allocation of funds, pursuant to the funding formula, to each
planning and service area in the State.'' In addition, section
307(a)(33) now requires the State plan to include the statement and the
demonstration required by paragraphs (2) and (4) of section 305(d), and
provides that the Commissioner may not approve the State plan unless
the Commissioner approves the statement and demonstration.
In light of these new requirements, AoA believes it is of critical
importance that States have as much time as possible to review their
current intrastate funding formulas, and, if necessary, modify them or
develop new formulas; to consult with area agencies as required in
section 305(a)(2)(C); to publish their plans for review and comment as
required in section 305(d); and to seek and obtain legislation or
legislative approval prior to submitting the formulas for approval, if
necessary. To ensure that States have the time to accomplish these
steps, AoA is publishing this NPRM separately from, and in advance of,
its notice of other rules being developed in response to the 1992
amendments to the Act.
III. Summary of the Provisions of the NPRM
Section 1321--Grants to State and Community Programs on Aging
1321.3 Definitions--The term ``low-income'' is added in order to
clarify its direct relationship to the new definition of poverty added
to Title I by the 1992 amendments to the Act, and to assist State
agencies in targeting resources when they develop their intrastate
funding formulas.
The term ``medically underserved areas,'' as used in
Sec. 1321.37(g) of this proposed rule, is added to clarify where funds
should be targeted in developing a method to allocate funds provided
under section 303(f) of the Act.
The term ``minority'' as defined in 28 CFR, subpart F, Sec. 42.402
(e) is added in order to clarify who is a minority for the purposes of
assisting States to determine who is a low-income minority older
individual in developing their targeting strategies and activities as
well as developing intrastate funding formulas.
The term ``periodic,'' as used in sections 306(a)(6) and 307(a)(8)
of the Act and part 1321 with respect to evaluations of, reports on,
and public hearings on, activities carried out under State and area
plans, is added to clarify that the term means, at a minimum, once each
fiscal year (annually).
The term ``rural area'' is defined as required by section
307(a)(37) of the Act, to clarify the definition of rural area within a
planning and service area, and to assist States in identifying actual
and projected additional costs of providing services in rural areas as
required under section 307(a)(37) as well as in the development of
their intrastate funding formulas.
1321.17 Content of State plan--this subjection is amended to
reflect and clarify additional requirements in the 1992 amendments to
the Act, to remove those sections and paragraphs that are now
unnecessary because they are set forth in the Act under the 1992
amendments, and to assure that States provide adequate descriptions and
exhibits in the State plan to assist the public in understanding
changes required by the 1992 amendments. The NPRM proposes to remove
the assurances now required under current Sec. 1321.17(f)(1)-(3), (8)-
(10), (13), and (15) as unnecessary because they are now reflected in
the 1992 amendments to the Act. The following new requirements are
proposed pursuant to the 1992 amendments:
(1) Section 1321.17(c)(1)-(4) is amended to require the State to
show the distribution of Title III funds using the intrastate funding
formula developed under section 305(a)(2)(C) of the Act, including--
A description of how the State will meet the rural
expenditure requirements under seciton 307(a)(3)(B) of the Act,
An exhibit that details how the State meets the
requirements of 307(a)(37) of the Act to identify total actual and
projected costs of providing services in rural areas,
A comparison between the current intrastate funding
formula and the proposed one using the best available demographic data,
the Commissioner's guidelines, the geographic distribution of older
individuals, and of those older individuals in greatest economic and
greatest social need with particular attention to low-income minority
older individuals, as required by section 305(a)(2)(C) of the Act
including:
A numerical statement comparing the current intrastate
funding formula to the proposed one under section 305(a)(2)(C);
A comparison of the population, economic, and social data
for each planning and service area used for the current and for the
proposed formulas; and
A comparison and demonstration of the allocation of Title
III funds allocated to each planning and service area under the current
intrastate funding formula and the one proposed;
(2) Section 1321.17(c)(5) is added to assist AoA in monitoring and
assessing the State's progress in meeting the new requirements under
section 307(a)(37) of the Act which require that State plans identify,
for each fiscal year of the plan, the actual and projected additional
costs for providing services to older individuals residing in rural
areas. In addition, the information obtained under this section will
assist AoA in carrying out the requirements of section 202(b)(27)(A) of
the Act which requires the Commissioner to ``conduct a study to
determine ways in which Federal funds might be more effectively
targeted to low-income minority older individuals, and older
individuals residing in rural areas, to better meet the needs of States
with a disproportionate number of older individuals with greatest
economic need and older individuals with greatest social need.'' It is
our expectation that providing this information in the State plan will
greatly reduce the paperwork burden that would be incurred with a
separate national study conducted solely for this purpose. Accordingly,
using the definition of rural areas in Sec. 1321.3 of this NPRM, we
propose that each State plan include a table displaying planning and
service areas (PSA's) ranked by the proportion of rural older
individuals in each as a percentage of the rural population in the
State; showing the distribution of Title III funds in each PSA under
the current intrastate funding formula and under the proposed
intrastate funding formula (IFF); and the source of the distribution
information (which must by law be the best available data).
Example
------------------------------------------------------------------------
Distribution of
PSA's ranked Distribution of title III
by percentage title III allocation to
PSA's of rural allocation to rural rural areas under
population in areas under current proposed IFF
the State IFF (assume no change
in allocation)
------------------------------------------------------------------------
PSA-A 20%#3 Placer County--$2 Placer County--$2
million; Census million; Census
tracts 2 and 3-- tracts 2 and 3--
$1.5 million. $1 million.
PSA-B 4%#6 Rosemount City-- Rosemount City--
$300,000; Census $300,000; Census
tract 7--$700,000. tract 7--
$700,000.
PSA-C 30%#1 Census tracts 11, Census tracts 11,
16, 19--$4 16, 19--$4
million; Auburn million; Auburn
township--$2 township--$2
million; Tuluga million; Tuluga
County--$3 million. County--$3
million.
PSA-D 6%#5 Entire PSA--$1.5 Entire PSA--$1
million. million.
PSA-E 15%#4 Empire County--$1.5 Empire County--
million; Census $1.5 million;
tracts 21, 32, 11, Census tracts 21,
& 47--$1.5 million. 32, 11, & 47--1.5
million.
PSA-F 25%#2 Yolo County--$2 Yolo County--$2
million; Lake million; Lake
County--$3 County--$3
million; Census million; Census
tracts 53, 44, 39-- tracts 53, 44,
$2 million; Blythe 39--$2 million;
County--$1 million. Blythe County--$2
million.
--------------------------------------------------------
Total 100% $26 million........ $26 million.
------------------------------------------------------------------------
In the above hypothetical example, the table shows the effect on
rural areas of a proposed intrastate funding formula which would reduce
the funds allocated to PSA-A and PSA-D, and increase the funds
allocated to PSA-F.
(3) Section 1321.17(f)(9)(i) (previously 1321.17(f)(14)(i)) is
revised to clarify when a State agency may permit an area agency to use
Title III service dollars to fund program development and coordination
activities. Under current policy, AoA provides State and area agencies
with the flexibility to explore new and alternative methods for
providing supportive and nutrition services through a comprehensive and
coordinated delivery system by permitting the expenditure of service
dollars, under section 304(d)(1)(D), for that purpose. During the past
five years, State and area agencies have raised issues about whether
section 1321.17(c)(14)(i) of the current rule clearly establishes the
threshold at which State agencies may allow area agencies to so use
section 304(d)(1)(D) service funds is based on the total allotment of
Title III dollars awarded a State, including State plan administration,
or based on the total amount of Title III dollars awarded to area
agencies for the provision of supportive and nutrition services under
section 304(d)(1)(D) of the Act.
This regulation makes clear that a State agency may not fund
program development and coordinated activities as a cost of supportive
services until the State agency has funded area plan administration to
a level of at least 10 percent of the Title III funds in section
304(d)(1)(D), with the exception of those funds provided for in section
303(b)(3) and section 303(f), which are not distributed through the
State's IFF.
(4) Section 1321.17(f)(10) is added to require a new assurance that
States provide the Commissioner with a periodic update of the plan to
reflect the actual and projected additional costs of providing services
in rural areas, as required by the new section 307(a)(37) of the Act;
(5) Section 1321.17(f)(11) is added to require a new assurance that
the State agency, in consultation with each area agency, will set
specific objectives for the provision of Title III funded services to
low-income minority older individuals, and assure that such objectives
are included in the area plan; and
(6) Section 1321.17(f)(12) is added to require a new assurance that
the State will support area plan objectives by undertaking specific
program development, advocacy, and outreach efforts focused on the
needs of low-income minority older individuals and provide the
Commissioner with a written description of its activities to be
included in the Commissioner's annual report to the Congress.
(7) Section 1321.17(g) is added to clarify and set out those
requirements that States which are designated Single Planning and
Service Areas must meet to receive a grant under Title III of the Act.
1321.21 Submission of the State plan or plan amendments to the
Commissioner for approval--this section is revised by requiring States
to submit their State plans or plan amendments for approval at least 90
days prior to the effective date of the plan or plan amendment rather
than the current 45 days. This change was made in order to facilitate
simultaneous review and technical assistance, if needed, by the AoA
Regional Office. The additional 45 days also provides the State agency
with additional time to discuss any deficiencies the Regional Office
may find in the State plan or the intrastate funding formula and for
the State to correct them. It is AoA's intention that this additional
time during the pre-approval period will assist States and AoA in
assuring that State plans and intrastate funding formulas are approved
in a timely manner.
1321.37 Intrastate funding formula--this section is revised to
comply with the 1992 amendments to the Act that require the
Commissioner to provide guidelines to State agencies in the development
of their intrastate funding formulas, and to approve each State's
intrastate funding formula as a condition of approving the State plan.
The Commissioner's guidelines are intended to provide State
agencies with criteria for developing intrastate funding formulas that
target the needs of those in greatest economic and social need, and
low-income minorities within each PSA. The guidelines also provide area
agencies, service providers, older individuals, units of general
purpose local government, and the pubic with a method by which to
assess the State's proposed intrastate funding formula impact in each
planning and service area. We anticipate that the public hearing
process at both the State and local levels will provide groups,
organizations, and individuals that may be affected with as much
information as possible about the actual impact the formula will have
on current and projected plans and services within the PSA's.
AoA is aware that there may be changes in the allocation of Title
III funds to PSA's if State agencies determine that it is necessary to
modify current or develop new intrastate funding formulas in response
to changes in demographics, or in compliance with the Commissioner's
guidelines in these regulations. Whether the formula remains the same,
is modified or a new formula is developed, it is essential that the
process of targeting older individuals in greatest economic and social
need with particular emphasis on low-income minority individuals have a
demonstrable outcome.
The 1992 Amendments strengthen the targeting provisions of the OAA
through a number of requirements relating to State Units on Aging
(SUAs), area agencies on aging (AAAs) and service providers. The
Amendments require SUAs to set specific objectives and describe actions
used to increase participation of low-income minority older individuals
(Section 305(a)(2)(G)); require SUAs to provide technical assistance to
minority service providers (Section 305(a)(1)(D)); require area plans
to include specific service objectives for minority targeting (Section
306(a)(5)(A)(i)); provide assurances that providers serve low-income
minority individuals in accordance with their need for services
(Section 306(a)(5)(A)(ii)); and require that all AAA activities must
include a focus on the needs of low-income minority older individuals
(Section 306(a)(5)(C)).
In determining how funds available under Title III are to be
distributed to implement these objectives, the 1992 Amendments make it
clear that States must base the distribution of funds on an intrastate
funding formula that takes into account the distribution of older
individuals, and of older individuals with greatest economic need and
older individuals with greatest social need, with particular attention
to low-income minority older individuals. The Amendments also require
that the SUA submit its formula to the Commissioner for approval.
The guidelines proposed here in accordance with section
305(c)(2)(C) having the following objectives:
To provide flexibility for the States to develop a
formula, based on the provisions of the Act, which is appropriate to
the conditions in each State; and
To provide criteria for approval by the Commissioner
which are outcome rather than process oriented and meet a standard
of administrative simplicity.
The criteria developed in these guidelines are based on the
principle that funds and services should be targeted on older
individuals in greatest economic need and older individuals in greatest
social need, with particular attention to low-income minority older
individuals.
There are two criteria for approval of the formula:
(1) to be approved, the formula may not allocate less funds to
each PSA with a high concentration of low-income minority older
individuals than would have been allocated to each of these PSA's by
application of the current formula to the most recent decennial U.S.
census data or the best available data.
In view of the provisions in the Act which require particular
attention to low-income minority older individuals, this criterion is
intended to ensure that the proposed formula will not divert funds from
PSA's with the highest concentrations of such individuals, when applied
to the same population data as the old formula.
(2) to be approved, the formula may not allocate less funds,
from the total amount subject to allocation, to each PSA with a high
concentration of low-income minority older individuals that would be
allocated to each of these PSA's if the formula submitted for
approval were based solely on the factors of age, i.e., 60+, and
greatest economic need, i.e., the proportion of older individuals
below the poverty line.
In view of the provisions in the Act which require particular
attention to low-income minority older individuals, the introduction of
social need factors in the formula should, if anything, increase funds
distributed to PSA's with the highest concentrations of low-income
minority older individuals to an amount no less than would go to the
PSA based only on age and economic need. In no event may the
introduction of social need factors decrease such funds.
A standard procedure is proposed for identifying the PSA's with the
highest concentrations of low-income minority older individuals. After
the State ranks the PSA's based on the proportion of low-income
minority older individuals to all older individuals in the PSA, those
PSA's with the highest proportion of low-income minority individuals
which, taken together, contain 51 percent of all low-income minority
older individuals in the State shall be, for the purposes of this rule,
considered the PSA's with the highest concentrations of low-income
minority older individuals.
BILLING CODE 4150-04-M
TP17MR94.000
BILLING CODE 4150-04-C
In the example above, PSA's A and B constitute the PSAs with the
highest concentration of low-income minority older individuals (see
column 4) and have a combined total of 76% of the State's total low-
income minority elderly population (see column 6), which meets the 51%
requirement.
This example represents a hypothetical State's proposed formula
that meets the proposed criteria for approval in that PSA's A and B
would not receive less funds under the proposed formula (col. 9 ) than
either would have received by application of the current formula to the
most recent decennial U.S. census data (col. 7), and neither PSA would
receive less funds under the formula (col. 9) than it would if funds
were distributed solely on the basis of age and greatest economic need
(col. 8). Finally, this example shows that when more than one PSA is
required to accumulate 51 percent of the low-income minority older
individuals in the State, the distribution to each such PSA must
satisfy both specified criteria.
AoA has developed the criteria for approval of an intrastate
funding formula so as to ensure that social need factors do not result
in decreased funding to PSA's with the highest concentration of low-
income minority older individuals.
We note that the proposed guidelines do not speak to the
distributional effects on PSA's which contain the other 49 percent of
the low-income minority older individuals in the State (which may also
contain a significant number of older individuals in greatest economic
need, greatest social need, and low-income minority older individuals).
However, it should be observed that the law requires that SUAs, area
agencies on aging, and service providers utilize effective methods of
targeting services to older individuals who are in the greatest
economic need and the greatest social need, with particular attention
to low-income minority older individuals in all PSA's. Thus,
irrespective of the distribution of Title III funds, the SUA's, AAA's,
and service providers are required to comply with the targeting
requirements in the Act, using such Title III funds and other sources
as are available to support services to individuals in targeted groups.
1321.76 Appeal process to the Commissioner--this subsection is
added to Subpart E to reflect the Commissioner's new responsibilities
under section 305(b)(5)(C)(i) of the 1992 amendments to the Act.
We anticipate that some Title III funds may shift among PSA's if
intrastate funding formulas are modified or changed in accordance with
these proposed regulations. Although the 1992 amendments to the Act and
these proposed rules do not require a change in PSA boundaries, section
305(a)(1)(E) of the Act requires States to consider the total number of
older individuals 60+, older individuals in greatest economic need, and
older individuals in greatest social need, with particular attention to
low-income minority older individuals residing in the State, in
dividing the State into distinct PSA's. As a result of the 1990 census,
States may elect to change some PSA boundaries in order to reflect
changes in demographics and geographic locations of particular groups
of older individuals based on the 1990 census. AoA is proposing this
new rule to provide parties adversely affected by a State's decision to
change PSA boundaries with an opportunity to appeal to the
Commissioner, pursuant to section 305(b)(5)(C) of the Act.
1321.77 Scope--this subsection is revised to allow for alternative
methods of dispute resolution, and to reflect the requirements of the
1992 amendments to the Act which allow an appeal to the Secretary of
HHS after the Commissioner has disapproved a State's plan, plan
amendment or intrastate funding formula. AoA includes these revisions
in these proposed rules in order to clarify appeals procedures that are
to apply when the Commissioner does not approve the intrastate funding
formula under section 305(a)(2)(C) or otherwise finds that a State plan
has failed to meet the requirements of Section 307.
1321.79 When a decision is effective--this subsection is revised to
include a State's right to appeal to the Secretary.
1321.81 How the State may appeal--this subsection is revised to
describe how a State may appeal to the Secretary.
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 of Health and Human
Services 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.
Regulatory Flexibility Act of 1980
The Regulatory Flexibility Act of 1980, Pub. L. 96-354, requires
that an agency prepare a regulatory flexibility analysis for a proposed
or final rule if the rule would have significant economic impact on a
substantial number of ``small entities'', i.e. small businesses, small
non-profit organizations, or small governmental jurisdictions.
The responsibility for meeting the requirements of the regulations
proposed in this NPRM is on the State agencies and to a lesser extent
on area agencies. Actual delivery of services may be provided in some
circumstances by proprietary, public, and not-for-profit agencies or
organizations under grants or contracts from State or area agencies.
Although area agencies and most service delivery agencies and
organizations are ``small entities'' within the meaning of the Act,
this rule will impose no significant burdens on State agencies, area
agencies or other affected parties and will provide flexibility to
State and area agencies in implementing the provisions of the Act. For
these reasons, the Secretary hereby certifies that these regulations
will not have a significant economic impact on a substantial number of
small entities.
Paperwork Reduction Act
This proposed rule contains information collection requirements
which are subject to review by the Office of Management and Budget
(OMB) under the Paperwork Reduction Act of 1980. The title,
description, and respondent description of the information collection
are shown below with an estimate of the time for reviewing
instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the
collection of information.
Title: Grants for State and Community Programs on Aging.
Description: The 1992 amendments to the Older Americans Act (Pub.
L. 102-375) now require States to submit their intrastate funding
formulas to the Commissioner on Aging for approval, rather than only
for review and comment, as was the case prior to the 1992 amendments.
The amendments also require the Commission to provide guidance to
States in the development of their intrastate funding formulas. AoA has
interpreted the amendments to require that this guidance be in addition
to the language contained in section 305(a)(2)(C) of the statute which
requires State agencies to take into account the geographic
distribution, greatest economic and greatest social need of older
individuals, with particular attention to low-income minority
individuals, in the development of their intrastate funding formulas.
If the Commissioner does not approve the intrastate funding formula, a
new requirement under section 304(c) requires the Commissioner to
withhold the State's allotment of supportive and nutrition funds under
Title III of the Act.
In order to comply with these new statutory requirements as well as
address the intent of Congress, the Commissioner has developed
regulatory standards, and provided directions for each State agency on
how to evaluate whether its formula meets those standards. The proposed
regulations are designed to provide a State agency with flexibility to
either maintain its current formula or, if necessary, to allow for the
development of a modified or new formula that addresses the
requirements set out by Congress in section 305(a)(2)(C) of the Act.
These proposed regulations require that careful consideration be given
to the geographic distribution of older individuals in the State, and
the distribution among the planning and service areas of older
individuals with greatest economic need and older individuals with
greatest social need, with particular attention to low-income minority
individuals.
Because section 304(c) now requires the Commissioner to withhold
funds if the Commissioner does not approve a State's intrastate funding
formula, States cannot reasonably be expected to develop intrastate
funding formulas that can be approved, unless they receive regulatory
guidelines. Further, in the course of developing their intrastate
funding formulas, States are required, under sections 305(a)(2)(C) and
305(d), to publish their intrastate funding formulas for review and
comment by the public. This publication for review and comment must
include: ``(1) A descriptive statement of the formula's assumptions and
goals, and the application of the definitions of greatest economic or
social need; (2) a numerical statement of the actual funding formula to
be used; (3) a listing of the population, economic, and social data to
be used for each planning and service area in the State; and (4) a
demonstration of the allocation of funds, pursuant to the funding
formula, to each planning and service area in the State.'' In addition,
section 307(a)(33) now requires the State plan to include the statement
and the demonstration required by paragraphs (2) and (4) of section
305(d) of the Act. The Commissioner may not approve the State plan
unless the Commissioner approves the statement and demonstration. These
proposed regulations provide States with guidelines on how to make an
acceptable numerical statement and an acceptable demonstration of the
allocation of funds.
Description of Respondents: State or local governments and non-
profit institutions.
Estimated Annualized Burden
[Reporting burden associated with the regulations]
----------------------------------------------------------------------------------------------------------------
Respondents Responses Total Hours/ Total
Regulation section per year per year Respondents Respondents burden
----------------------------------------------------------------------------------------------------------------
1321.17(c)--Intrastate funding formula
development.................................. 11 1 11 80 880
1321.17(d)--Intrastate funding formula
approval..................................... (11) 1 11 8 88
1321.17(e)--Intrastate formula publication for
review and comment........................... (11) 1 11 30 330
1321.17(g)--Determination of medically under
served and separate allocation............... 11 1 11 20 220
1321.17(h)--Demonstration of targeting by
single planning and service areas............ 4 1 4 25 100
----------------------------------------------------------------------------------------------------------------
Total reporting burden 1618.
Basis for estimates: The statute allows States to submit their
State plans every two, three, or four years. Our estimates are based on
the average number of State plan submissions per year during the four
year periods between Older Americans Act reauthorizations. We estimate
that 11 State agencies will incur regulatory burdens in complying with
the requirements under proposed sections 1321.17 (c), (d), and (e); 11
State agencies will incur regulatory burdens in complying with proposed
section 1321.17(g); and 4 State agencies and trust territories will
incur regulatory burdens in complying with proposed section 1321.17(h).
Because some States have chosen two or three year State plans, they
will either submit new plans or amend approved plans more than once
during the four years between reauthorizations. The table above
projects our estimate that on average 26 of the 57 State agencies and
trust territories will incur burdens on complying with these proposed
requirements once a year.
We have submitted a copy of this proposed rule to OMB for its
review of these information collections. Send comments regarding this
burden estimate or any other aspect of this collection of information,
including suggestions for reducing this burden to Allison Eydt, HHS
Desk Officer, Human Resources and Housing, OMB, and to the Office of
Information and Regulatory Affairs, OMB, Washington, DC 20503.
List of Subjects in 45 CFR Part 1321
45 CFR Part 1321
Administrative practice and procedure, Aged, Grant programs--
Indians, Grant programs--social programs, Indians, Legal services,
Nutrition, Reporting and recordkeeping requirements.
Dated: February 22, 1994.
Fernando M. Torres-Gil,
Commissioner on Aging, Assistant Secretary for Aging.
Approved:
Dated: March 2, 1994.
Donna E. Shalala,
Secretary of Health and Human Services.
For the reasons set forth in the preamble, 45 CFR part 1321 is
proposed to be amended as follows:
PART 1321--GRANTS TO STATE AND COMMUNITY PROGRAMS ON AGING
1. The authority for part 1321 continues to read as follows:
Authority: 42 U.S.C. 3001 et seq.; title III of the Older
Americans Act, as amended.
Subpart A--Introduction
2. Section 1321.3 is amended by revising the definition of
``Periodic'' and adding definitions in alphabetical order as follows:
Sec. 1321.3 Definitions.
* * * * *
Low-income means below the official poverty guidelines (as defined
by the Office of Management and Budget, and adjusted by the Secretary
(HHS) in accordance with subsection 673(2) of the Community Services
Block Grant Act (42 U.S.C. 9902(2)).
* * * * *
Medically underserved areas, as used in Sec. 1321.37(g), are those
areas within planning and service areas which are identified by the
State as having low ratios, relative to other areas in the State, of
primary care physicians per 1,000 individuals age 60 and over.
Minority, as used in this Part, are confined to the following
designations:
(1) Black, not of Hispanic Origin. A person having origins in any
of the black racial groups of Africa.
(2) Hispanic. A person of Mexican, Puerto Rican, Cuban, Central or
South American or other Spanish culture or origin, regardless of race.
(3) Asian or Pacific Islander. A person having origins in any of
the original peoples of the Far East, Southeast Asia, the Indian
Subcontinent, or the Pacific Islands. This area includes, for example,
China, Japan, Korea, the Philippine Islands, and Samoa.
(4) American Indian or Alaskan Native. A person having origins in
any of the original peoples of North America, and who maintain cultural
identification through tribal affiliation or community recognition.
* * * * *
Periodic, as used in sections 306(a)(6) and 307(a)(8) of the Act
with respect to evaluations of, reports on, and public hearings on,
activities carried out under State and area plans, means, at a minimum,
once each fiscal year (annually).
Rural area, as used in this part, means any area that is not
defined as urban. Urban areas comprise:
(1) Urbanized areas (incorporated places and adjacent densely
settled territory with a combined minimum population of 50,000) and
(2) All other places with 2,500 or more inhabitants.
Subpart B--State Agency Responsibilities
3. Section 1321.17 is revised to read as follows:
Sec. 1321.17 Content of State plan.
To receive a grant under this part, a State shall have an approved
State plan as prescribed in section 307 of the Act. In addition to
meeting the requirements of section 307, a State plan shall include:
(a) Identification by the State of the sole State agency that has
been designated to develop and administer the plan.
(b) Statewide program objectives to implement the requirements
under Title III of the Act and any objectives established by the
Commissioner through the rulemaking process.
(c) A resource allocation plan which indicates the proposed use of
all Title III funds administered by a State agency, and the
distribution of Title III funds to each planning and service area using
the intrastate funding formula developed under section 305(a)(2)(C),
and published in accordance with the requirements of section 305(d);
contains a descriptive narrative explaining how the State will meet the
requirements of section 307(a)(3)(B); and contains an exhibit that
details how the State will meet the requirements of section 307(a)(37)
of the Act, including:
(1) A descriptive statement and comparison of the current
intrastate funding formula's assumptions and goals and those of the
proposed formula developed as required under section 305(a)(2)(C) for
the Commissioner's approval;
(2) A numerical statement of the current intrastate funding formula
compared to the formula developed as required under section
305(a)(2)(C) for the Commissioner's approval;
(3) A listing of the population, economic, and social data to be
used for each planning and service area in the State;
(4) A comparison and demonstration (i.e., statement) of the
allocation of funds, pursuant to the current intrastate funding
formula, applied to the best available data, for each planning and
service area in the State compared to the allocation of funds for each
planning and service area using the formula developed as required under
section 305(a)(2)(C) for the Commissioner's approval; and
(5) In accordance with the definition of rural areas in
Sec. 1321.3, the State must submit the following supporting information
displayed in one table:
(i) The Planning and Service Areas (PSA's) ranked from high to low
based on the proportion of rural individuals age 60 years and over to
the total population age 60 years and over in each PSA;
(ii) The distribution of funds to rural areas in each of the PSA's
based on the current formula; and
(iii) The distribution of funds to rural areas in each of the PSA's
using the formula developed under section 305(a)(2)(C) for the
Commissioner's approval.
(d) Identification of the geographic boundaries of each planning
and service area and of the area agency on aging designated for each
planning and service area, if appropriate.
(e) For the preceding year, the number of low-income minority older
individuals and older individuals residing in rural areas, and a
description of the methods used to satisfy their service needs, as
required by sections 307(a) (23) and (29) of the Act.
(f) Each of the assurances and provisions required in sections 305
and 307 of the Act, and provisions that the State meets each of the
requirements under sections 1321.5 through 1321.83 of this part, and
the following assurances as prescribed by the Commissioner:
(1) Procedures exist to ensure that all services under this part
are provided without use of any means tests;
(2) All services provided under Title III meet any existing State
and local licensing, health and safety requirements for the provision
of those services;
(3) Older individuals are provided opportunities to voluntarily
contribute to the cost of services;
(4) Area plans shall specify as submitted, or be amended annually
to include, details of the amount of funds expended for each priority
service during the past fiscal year;
(5) The State agency shall develop policies in consultation with
the area agencies on aging governing all aspects of programs operated
under this part, including the manner in which the ombudsman program
operates at the State level and the relation of the ombudsman program
to area agencies on aging where area agencies on aging have been
designated;
(6) Area agencies on aging shall compile available information,
with necessary supplementation, on courses of post-secondary education
offered to older individuals with little or no tuition. The assurance
shall include a commitment by the area agencies on aging to make a
summary of the information available to older individuals at
multipurpose senior centers, congregate nutrition sites, and in other
appropriate places.
(7) Individuals with disabilities who reside in a non-institutional
household with and are accompanied by an individual eligible for
congregate meals under this part shall be provided a meal on the same
basis that meals are provided to volunteers pursuant to subsection
307(a)(13)(I) of the Act.
(8) Individuals with disabilities who reside in a non-institutional
household with an individual eligible for home delivered meals under
this part shall be provided a meal on the same basis that meals are
provided to volunteers pursuant to subpart 307(a)(13)(I) of this Act.
(9) (i) The State agency will not fund program development and
coordination activities as a cost of supportive services for the
administration of area plans until it has first spent 10 percent of the
total of its funds allotted under section 304(d)(1)(D) for the
administration of area plans;
(ii) State and area agencies on aging will, consistent with
budgeting cycles (annually, biennially, or otherwise), submit the
details of proposals to pay for program development and coordination as
a cost of supportive services, to the general public for review and
comment; and
(iii) The State agency certifies that any such expenditure by an
area agency on aging will have a direct and positive impact on the
enhancement of services for older individuals in the planning and
service area.
(10) The State agency will update the plan periodically to reflect
the actual and projected additional costs of providing services under
this title as required in section 307(a)(37) of the Act.
(11) The State agency shall set specific objectives, in
consultation with each of its area agencies on aging, for each planning
and service area for providing services funded under Title III to low-
income minority older individuals, and such objectives must be included
in the area plan.
(12) The State, in support of area plan objectives developed under
section 306(a)(1) of the Act, will undertake specific program
development, advocacy, and outreach efforts focused on the needs of
low-income minority older individuals and provide the Commissioner a
written description of its activities and accomplishments in an annual
report due not later than 60 days following the close of the fiscal
year.
(g) To receive a grant under this part, a State that is designated
a Single Planning and Service Area must have an approved State plan as
prescribed in section 307 of the Act, with the exception of sections
307(a)(3)(B), 305(a)(2)(C) and 305(d) as cross referenced in section
307. The State plan must also meet the provisions of this rule as set
out in:
(1) Section 1321.17(a);
(2) Section 1321.17(b);
(3) Section 1321.17(c) using other appropriate geographical
designations as appropriate in place of planning and service areas, and
excluding Secs. 1321.17(c)(1) through 1321.17(c)(4);
(4) Section 1321.17(c)(5) using other appropriate geographical
designations as appropriate in place of planning and service areas;
(5) Section 1321.17(e); and
(6) Section 1321.17(f) with the exception of those sections of the
Act as noted in Secs. 1321.17(c) and 1321.17(f)(9). States will use
single planning and service area in place of area agency wherever it
appears.
4. Section 1321.21 is revised to read as follows:
Sec. 1321.21 Submission of the State plan or plan amendment to the
Commissioner for approval.
Each State plan or plan amendment which requires approval of the
Commissioner shall be signed by the Governor or the Governor's designee
and submitted to the Commissioner for approval at least 90 calendar
days before the proposed effective date of the plan or plan amendment.
5. Section 1321.37 is revised to read as follows:
Sec. 1321.37 Intrastate funding formula.
(a) The State agency, after consultation with all area agencies on
aging in the State, shall, based on the requirements of section
305(a)(2) (C) and (E) of the Act, with the exception of those funds
provided for in section 303(b)(3) and section 303(f) of the Act,
develop and use one intrastate funding formula for the allocation to
all area agencies of all funds under section 304(d)(1)(D) of the Older
Americans Act.
(b) In developing its intrastate formula, the State agency shall
use the most current U.S. decennial census data or the best available
data.
(c) The State agency shall submit its formula to the Commissioner
for review and approval at least 90 days prior to the period for which
it will apply in the State. The State agency shall also submit at the
same time the following supporting information displayed in one table:
(1) The Planning and Service Areas (PSA's) ranked cumulatively from
high to low based on the proportion of low-income minority individuals
(as defined in Sec. 1321.3) age 60 years and over (as defined in
section 102(38) of the Act) to the total population age 60 years and
over in the PSA;
(2) The distribution of funds to each of the PSA's as applied to
the best available data under the current formula;
(3) The distribution of funds to each of the PSA's based on a
formula with population age 60 and over and population age 60 and over
in greatest economic need (as defined in section 102(29) of the Act) as
the only factors and using the best available data; and
(4) The distribution of funds to each of the PSA's based on the
intrastate funding formula submitted to the Commissioner for approval.
(d) The Commissioner shall approve the intrastate funding formula
if the following criteria are satisfied when applied to each of the top
ranked PSA's which cumulatively contain fifty one percent of all low-
income minority older individuals in the State under paragraph (c)(1)
of this section, rounded to the nearest integer:
(1) No less funds are allocated to each PSA in the top fifty one
percent of all PSA's ranked cumulatively under paragraph (c)(1) of this
section than would be allocated to each of those PSA's by application
of the current formula to the most recent decennial census or the best
available data; and
(2) Each PSA in the top fifty one percent of all PSA's ranked
cumulatively under paragraph (c)(1) of this section is allotted no less
funds, from the total amount subject to allocation in section
304(d)(1)(D), under the formula submitted for approval than each of
these PSA's would have received under a formula with 60 years and over
and greatest economic need as the only factors.
(e) The State agency shall publish the formula for review and
comment by older individuals, other appropriate agencies and
organizations, and the general public.
(f) At least every two years the State agency shall review the most
recent U.S. decennial census or the best available data and shall,
based on any changes, allocate funds under section 304(d)(1)(D) through
its intrastate funding formula. The States shall submit a report to the
Commissioner detailing any changes in the distribution of funds by PSA
not later than 30 days after the allocation.
(g) The intrastate funding formula shall provide for a separate
allocation of funds received under subsection 303(f) for disease
prevention and health promotion. The State agency shall award such
funds to priority planning and service areas which the State agency
determines:
(1) Are medically underserved; and
(2) In which there are large numbers of individuals age 60 and
older in greatest economic need.
(h) State agencies in those States which have been designated as
single planning and service areas are not required to have an
intrastate funding formula but shall demonstrate in their State plan as
required in Sec. 1321.17(g) that the funds received under the Older
Americans Act are used in a manner which targets services to older
individuals in greatest economic need and older individuals in greatest
social need, with particular attention to low-income minority older
individuals.
Subpart E--Hearing Procedures for State Agencies, Area Agencies on
Aging, and Other Adversely Affected Parties
6. Section 1321.76 is added to subpart E to read as follows:
Sec. 1321.76 Appeal Process--for Changes in Planning and Service
Areas.
This section sets forth the procedures the Commissioner follows for
providing hearings to adversely affected parties under section
305(b)(5)(C).
(a) Any adversely affected party who has been provided a hearing
and a written decision by the State agency may appeal the decision to
the Commissioner in writing no later than 30 days following receipt of
the State's decision.
(b) The Commissioner, or the Commissioner's designee, will provide
the opportunity for a hearing; if a hearing is requested, the
Commissioner will issue a written decision within 60 days of the
hearing; and if a hearing is not requested, the Commissioner will issue
a written decision within 60 days of receipt of the items in paragraph
(c) of this section.
(c) When the Commissioner receives an appeal, the Commissioner will
request the State Agency to submit:
(1) A copy of the appellant's application for designation as a
planning and service area;
(2) A copy of the written decision of the State; and
(3) Any other relevant information the Commissioner may require.
(d) The Commissioner may:
(1) Deny the appeal and uphold the decision of the State agency;
(2) Grant the appeal and overturn the decision of the State agency;
or
(3) Take other appropriate action, including facilitating an
alternative method of dispute resolution such as mediation, or
remanding the appeal to the State agency after initial findings.
7. Section 1321.77 is revised to read as follows:
Sec. 1321.77 Scope.
(a) This section governs the procedures and opportunity for a
hearing on:
(1) Disapproval of a State plan or amendment;
(2) Determination that a State agency does not meet one or more
requirements of section 307 of the Act, including the intrastate
funding formula requirement under section 305 of the Act; and
(3) Determination that there is a failure in the provisions or the
administration of an approved plan to comply substantially with Federal
requirements, including failure to comply with any assurance required
under the Act or under this rule.
(b) Hearing procedures for State plan disapproval, as provided for
in section 307(c) and subsection 307(d) of the Act are subject to the
provisions of 45 CFR part 213 with the following exceptions:
(1) Section 213.1(a); Secs. 213.32(d); and 213.33 do not apply.
(2) Reference to ``SRS Hearing Clerk'' shall be understood to mean
``HHS Hearing Clerk.''
(3) References to ``Administrator'' shall be read to mean
``Commissioner on Aging'' or, on appeal from the Commissioner's final
decision, ``the Secretary.''
8. Section 1321.79 is revised to read as follows:
Sec. 1321.79 When a decision is effective.
(a) The State may appeal the Commissioner's decision to the
Secretary within 30 days of the date of the decision, as provided in
Sec. 1321.81. The Commissioner may set aside or otherwise modify the
decision before the State files such an appeal.
(b) If the State appeals the Commissioner's decision to the
Secretary, then the Commissioner's decision will not take effect. The
State may appeal the Secretary's decision to the United States Court of
Appeals for the Circuit in which the State is located not later than 30
days after such decision. The Secretary may set aside or modify the
decision before the filing of the record in the Court. The Secretary's
decision will become effective 31 days after the date of decision if
the State does not appeal. If the State appeals the Secretary's
decision, then it will become effective when the record is filed in the
Court.
(c) In lieu of appealing the Commissioner's decision to the
Secretary, the State may appeal directly to the United States Court of
Appeals for the Circuit in which the State is located within 30 days of
the Commissioner's decision. The Commissioner may set aside or
otherwise modify the decision before the filing of the record in the
Court.
(d) If the State appeals the Commissioner's decision to the United
States Circuit Court of Appeals, then the Commissioner's decision will
become effective on the date the appeal is filed. If the State does not
appeal the Commissioner's decision, then the decision will become
effective on the thirty-first day after the date of the decision.
9. Section 1321.81 is revised to read as follows:
Sec. 1321.81 How the State may appeal.
(a) A State may appeal the final decision of the Commissioner
disapproving the State plan or plan amendment, finding non-compliance,
or finding that a State agency does not meet one or more requirements
of sections 305 or 307 of the Act, to the Secretary, as follows:
(1) The State shall file the appeal to the Secretary, with a copy
to the Commissioner, not later than 30 days after the Commissioner's
final decision;
(2) The State's appeal shall include a copy of the Commissioner's
final decision, and the reason why the State claims it is incorrect;
(3) Within 30 days of receipt of the appeal the Commissioner shall
submit to the Secretary a copy of the record and a response to the
State's claim;
(4) The Secretary shall issue a written decision within 60 days of
receipt of the Commissioner's decision;
(5) The Secretary may:
(i) Deny the appeal and uphold the Commissioner's decision;
(ii) Grant the appeal and reverse the Commissioner's decision; or
(iii) Take other appropriate action, including, but not limited to,
facilitating an alternative method of dispute resolution such as
mediation, or remanding the case to the Commissioner for further
development of the record;
(6) The Secretary may designate an appropriate Departmental
employee to make a recommended decision before the Secretary issues a
final written decision.
(b) A State may appeal the final decision of the Commissioner or
the Secretary to the United States Court of Appeals for the Circuit in
which the State is located as provided in section 307(e) of the Act.
10. Section 1321.83 is revised to read as follows:
Sec. 1321.83 How the Commissioner may reallot the State's withheld
payments.
The Commissioner will disburse funds withheld from the State
directly to any public or nonprofit private organization or agency, or
political subdivision of the State that has the authority and capacity
to carry out the functions of the State agency and submits a State plan
which meets the requirements of this part and which contains an
agreement to meet the non-Federal share requirements.
[FR Doc. 94-6136 Filed 3-16-94; 8:45 am]
BILLING CODE 4150-04-M
