95-11910. Developmental Disabilities Program

[Federal Register Volume 60, Number 96 (Thursday, May 18, 1995)]
[Proposed Rules]
[Pages 26774-26793]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-11910]

[[Page 26773]]

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Part II

Department of Health and Human Services

_______________________________________________________________________

Administration for Children and Families

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45 CFR Part 1385 et al.

Developmental Disabilities Program; Proposed Rule

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

[[Page 26774]]

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

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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. [[Page 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 Sec. 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 Sec. 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 Sec. 1385.5 Recovery of Federal funds used for
construction of facilities and Sec. 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 Sec. 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
[[Page 26776]] employment of individuals with disabilities.
In Sec. 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 Sec. 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
Sec. 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 Sec. 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 Sec. 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 Sec. 1386.19, Definitions, to include
definitions for subpart B, Sec. 1386.20 and Sec. 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 (Sec. 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 Sec. 1386.21(c)(1) and (3), (Sec. 142(a)(2)(B)) and
(Sec. 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 Sec. 1386.20 to read, Designated State Protection and Advocacy
System rather than Designated State Protection and Advocacy Office.
We are proposing a change in Sec. 1386.20(a) to include the
proposed term ``designating official'' as defined in Sec. 1386.19.
We also are proposing to revise Sec. 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
[[Page 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 Sec. 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 start-up 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
[[Page 26778]] 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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. [[Page 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
on-going administrative function, such notice will not be given through
the Federal Register.
In Sec. 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 Sec. 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 Sec. 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 Sec. 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
Sec. 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 Sec. 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 Sec. 1386.30. We
are [[Page 26780]] 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
Sec. 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 Sec. 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 Sec. 1386.32, Periodic Reports: Basic State grants, we are
proposing to revise the title to read Sec. 1386.32 Periodic reports:
Federal assistance to State Developmental Disabilities Councils (1994
Amendments). In Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 1386.37,
Public Notice of Federal Onsite Review for the State Developmental
Disabilities Councils. This requirement complements Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 1386.92, Place, we are including language on
accessibility regarding the place of the hearing. In Sec. 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.
[[Page 26781]]
In Sec. 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 Sec. 1386.101,
Authority of presiding officer, in paragraphs (a)(11) and (c). Also, we
are updating the references in Sec. 1386.111 Decisions following
hearing, paragraphs (c) and (d) and Sec. 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 Secs. 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 Sec. 1386.111(c) and
Sec. 1386.112 (a) and (b) are being replaced by the term ``payment or
allotment'' which will be defined in the proposed revision of
Sec. 1386.80. In Sec. 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 Sec. 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 Sec. 1386.111(d)
to section 138.
In Sec. 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 Sec. 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, Sec. 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 Sec. 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
Sec. 1388.3 Program criteria--administration, Sec. 1388.5 Program
criteria--training, Sec. 1388.6 Program criteria--technical assistance,
and Sec. 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 Sec. 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 [[Page 26782]] services is
now optional pursuant to section 151 of the Act (1994 Amendments). As
the 1994 Amendments deleted the authority for Satellite Centers,
Sec. 1388.8 Use of program criteria for Satellite Centers is being
deleted and reserved. Finally, we are revising the current regulations,
Sec. 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 Sec. 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
----------------------------------------------------------------------------------------------------------------
Annual Annual
Sec. No. Impact OMB No. number of burden
respondents hours
----------------------------------------------------------------------------------------------------------------
1386.23(a)..... Existing (OMB approval expired, re-approval to be 0980-0160 56 2,240
requested).
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 0980-0212 672 2,912
requested).
1386.32(b)..... Existing (OMB approval expired, re-approval to be 0980-0172 55 4,400
requested).
----------------------------------------------------------------------------------------------------------------

There will be no specified format for the submittal of the State
plan and assurances required in Sec. 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, [[Page 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:

Sec. 1385.1 General.

Except as specified in Sec. 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:

Sec. 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:

Sec. 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).

Sec. 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:

Sec. 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.

Sec. 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:

Sec. 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:

Sec. 1385.9 Grants administration requirements.

(a) The following parts of title 45 CFR apply to grants funded
under parts 1386 [[Page 26784]] 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:

Sec. 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:

Sec. 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.

Sec. 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 Sec. 1386.19 is added to include definitions as follows:

Sec. 1386.19 Definitions.

As used in Secs. 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:

Sec. 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.
* * * * * [[Page 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 start-up 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 [[Page 26786]] 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:

Sec. 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:

Sec. 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:

Sec. 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
[[Page 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 Re-approval
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:
Sec. 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:

Sec. 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 [[Page 26788]] 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:

Sec. 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:

Sec. 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 Re-approval concerning the reports will be modified
pursuant to the 1994 Amendments).

25. Section 1386.33 is amended by revising paragraph (a) as
follows:

Sec. 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:

Sec. 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. [[Page 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:

Sec. 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:

Sec. 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:

Sec. 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:

Sec. 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:

Sec. 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:

Sec. 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:

Sec. 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:
Sec. 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 [[Page 26790]] and Advocacy
System, the Assistant Secretary must provide all parties other than the
Department and the State (see Sec. 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:

Sec. 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 Sec. 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:

Sec. 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:

Sec. 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:

Sec. 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.
* * * * * [[Page 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:

Sec. 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.

Sec. 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 community-based 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.

Sec. 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.

Sec. 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 Sec. 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. [[Page 26792]]
(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.

Sec. 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 Sec. 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-the-art 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.

Sec. 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.

Sec. 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. [[Page 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.

Sec. 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.

Sec. 1388.8 [Reserved]

Sec. 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 non-Federal 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

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Document Information

Published:: 05/18/1995
Department:: Children and Families Administration
Entry Type:: Proposed Rule
Action:: Notice of proposed rulemaking
Document Number:: 95-11910
Dates:: To ensure consideration comments must be submitted on or before July 17, 1995.
Pages:: 26774-26793 (20 pages)
RINs:: 0970-AB11: Amendments to Developmental Disabilities Rules
RIN Links:: https://www.federalregister.gov/regulations/0970-AB11/amendments-to-developmental-disabilities-rules
PDF File:: 95-11910.pdf
CFR: (47): 45 CFR 1386.30(a); 45 CFR 1386.30(f)(4); 45 CFR No; 45 CFR 1385.1; 45 CFR 1385.3; More ...