Developmental Disabilities Program

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