Federal Register, Volume 68 Issue 189 (Tuesday, September 30, 2003)

[Federal Register Volume 68, Number 189 (Tuesday, September 30, 2003)]
[Rules and Regulations]
[Pages 56430-56449]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-24289]

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Part VIII

Department of Health and Human Services

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42 CFR Parts 54 and 54a

45 CFR Parts 96, 260 and 1050

Charitable Choice Provisions and Regulations; Final Rules

Federal Register / Vol. 68, No. 189 / Tuesday, September 30, 2003 /
Rules and Regulations

[[Page 56430]]

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DEPARTMENT OF HEALTH AND HUMAN SERVICES

42 CFR Parts 54 and 54a

45 CFR Part 96

RIN 0930-AA11

Charitable Choice Regulations Applicable to States Receiving
Substance Abuse Prevention and Treatment Block Grants, Projects for
Assistance in Transition From Homelessness Formula Grants, and to
Public and Private Providers Receiving Discretionary Grant Funding From
SAMHSA for the Provision of Substance Abuse Services Providing for
Equal Treatment of SAMHSA Program Participants

AGENCY: Substance Abuse and Mental Health Services Administration, HHS.

ACTION: Final rule.

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SUMMARY: On December 17, 2002, the Department of Health and Human
Services (HHS) published a Notice of Proposed Rulemaking (NPRM) to
implement the Charitable Choice statutory provisions of the Public
Health Service Act, applicable to the Substance Abuse Prevention and
Treatment (SAPT) Block Grant program, the Projects for Assistance in
Transition from Homelessness (PATH) formula grant program, insofar as
recipients provide substance abuse services, and to SAMHSA
discretionary grants for substance abuse treatment or prevention
services, which are all administered by the Substance Abuse and Mental
Health Services Administration (SAMHSA) of the U.S. Department of
Health and Human Services. The Secretary requested comments on the NPRM
and gave 60 days for individuals to submit their written comments to
the Department. The Secretary has considered the comments received
during the open comment period and is issuing the final regulation in
light of those comments.

EFFECTIVE DATE: October 30, 2003.

FOR FURTHER INFORMATION CONTACT: Daryl Kade, Associate Administrator
for Planning and Budget, 12C-06 Parklawn Building, 5600 Fishers Lane,
Rockville, Maryland 20857, telephone (301) 443-4111.

Background

Section 1955 of the Public Health Service Act, 42 U.S.C. 300x-65,
as added by the Children's Health Act of 2000 (Pub. L. 106-310), as
well as sections 581-584 of the Public Health Service Act, 42 U.S.C.
290kk, et seq., as added by the Consolidated Appropriations Act (Pub.
L. 106-554), (hereinafter referred to as ``SAMHSA Charitable Choice
provisions'') set forth certain provisions which are designed to give
people in need of substance abuse services a greater choice of SAMHSA-
supported substance abuse prevention and treatment programs. SAMHSA's
Charitable Choice provisions ensure that religious organizations are
able to compete on an equal footing for Federal substance abuse funding
administered by SAMHSA, without impairing the religious character of
such organizations and without diminishing the religious freedom of
SAMHSA beneficiaries. These provisions apply to recipients of the
Substance Abuse Prevention and Treatment (SAPT) Block Grant funds, the
Projects for Assistance in Transition from Homelessness (PATH) formula
grant funds, and to SAMHSA discretionary grant funds for substance
abuse prevention and treatment services.
President Bush has made it one of his Administration's top
priorities to ensure that Federal programs are fully open to faith-
based and community groups in a manner that is consistent with the
Constitution. It is the Administration's view that faith-based
organizations are an indispensable part of the social services network
of the United States. Faith-based organizations, including places of
worship, nonprofit organizations, and neighborhood groups, offer myriad
social services to those in need. The SAMHSA Charitable Choice
provisions are consistent with the Administration's belief that there
should be an equal opportunity for all organizations--both faith-based
and nonreligious--to participate as partners in Federal programs to
serve Americans in need. SAMHSA's Charitable Choice statutory
provisions were enacted within the constitutional framework of
government interaction with religious organizations. The goal of
Charitable Choice is not to support or sponsor religion, but to ensure
fair competition among providers of services whether they are public or
private, secular or faith-based.

Purpose of Rule

The SAMHSA Charitable Choice provisions contain important
protections both for religious organizations that receive SAMHSA
funding for substance abuse services and for the individuals who
receive services from such programs. The rule will work to ensure that
SAMHSA substance abuse programs are open to all eligible organizations,
regardless of religious character or affiliation, and to establish
clearly the proper uses to which funds may be put and the conditions
for receipt of funding. The regulations provide maximum flexibility to
the States and local governments, and to religious organizations that
are ``program participants'' in implementing these provisions. In that
vein, the final rules provide that, as part of the application package
they submit for funding, duly-designated officials from the States,
local governments, and applicants for SAMHSA discretionary funding for
applicable programs will assure that they will comply with these
provisions.

Brief Overview of the Rule

The Department is amending the regulations to add 42 CFR part 54
and part 54a. Part 54 addresses implementation of these provisions with
regard to SAMHSA's Substance Abuse Prevention and Treatment (SAPT)
Block Grant, 42 U.S.C. 300x-21 to 300x-66, and to SAMHSA's Projects for
Assistance in Transition from Homelessness (PATH) Formula Grants, 42
U.S.C. 290cc-21 to 290cc-35, in which the State has most of the
responsibility for implementation. Part 54a addresses implementation of
these provisions with regard to SAMHSA's discretionary grant programs,
42 U.S.C. 290aa, et seq., in which implementation responsibility is
shared among SAMHSA, and the States and local governments as recipients
of those grants.

Response to Comments Received on the Proposed Rule

The Department received comments about the Charitable Choice
proposed rule from 62 commenters, as follows:
[sbull] 15 comments from 13 States
[sbull] 13 comments from faith-based organizations
[sbull] 11 comments from substance abuse associations and providers
[sbull] 10 comments from individuals not representing particular
groups or organizations
[sbull] 8 comments from advocacy groups and civil rights
organizations
[sbull] 2 comments from public and State/local interest groups
[sbull] 2 from law firms
[sbull] 1 from a Federal agency
In general, comments from the States and providers centered on the
implementation of Section 54.8 and Section 54a.8, the alternative
services provisions. Comments from faith-based organizations, advocacy
groups, and interest groups centered on how to keep religious
activities separated from social services, and how to safeguard the
rights of both the religious organization and the program beneficiary.

[[Page 56431]]

The following is a summary of comments by issue, and the
Department's response to those comments.

Scope. (Secs. 54.1 and 54.1a)

This section of the rules clarifies that they apply, according to
SAMHSA's Charitable Choice provisions, only to awards that pay for
substance abuse prevention and treatment services under 42 U.S.C. 300x-
21, et seq., 42 U.S.C. 290cc-21 to 290cc-35, and 42 U.S.C 290aa, et
seq. These rules do not apply to awards under any such authorities for
activities that do not involve the direct provision of substance abuse
services.
Comment: One commenter was concerned ``about the singling out of
substance abuse services from mental health services, [perpetuating]
the damaging myth that substance abuse service are not truly health
care services.''
Response: SAMHSA's mental health programs are not covered by the
Charitable Choice statutory provisions. However, all of SAMHSA's
programs are covered by Executive Order 13279, Equal Protection of the
Laws for Faith-Based and Community Organizations, which establishes
that all eligible organizations, including faith-based and other
community organizations are able to compete on an equal footing for
Federal financial assistance. The Department is working to ensure that
all its programs, whether substance abuse or mental health, comply with
the principles set out in this Executive Order.
Comment: Several commenters opined that the proposed rule was an
unconstitutional breach of the principle of separation of church and
state, because it would allow public funds to be given to ``pervasively
sectarian organizations,'' contrary to longstanding judicial precedent.
Response: We do not agree with the commenters. Religious
organizations that receive direct SAMHSA funds for substance abuse
treatment cannot use such funds for inherently religious activities.
These organizations must ensure that religious activities are separate
in time or location from the treatment services and they must also
ensure that participation in such religious activities is voluntary.
Furthermore, they are prohibited from discriminating against a program
beneficiary on the basis of religion, a religious belief, a refusal to
hold a religious belief, or a refusal to actively participate in a
religious practice.
The Supreme Court's ``pervasively sectarian'' doctrine--which held
that there are certain religious institutions in which religion is so
pervasive that no government aid may be provided to them, because their
performance of even ``secular'' tasks will be infused with religious
purpose--no longer enjoys the support of a majority of the Court. Four
Justices expressly abandoned it in Mitchell v. Helms, 530 U.S. 793,
825-829 (2000) (plurality opinion), and Justice O'Connor's opinion in
that case set forth reasoning that is inconsistent with its underlying
premises, see id. at 857-858 (O'Connor, J., concurring in judgment,
joined by Breyer, J.) (requiring proof of ``actual diversion of public
support to religious uses''). Thus, six members of the Court have
rejected the view that aid provided to institutions will invariably
advance the institutions' religious purposes, and that view is the
foundation of the ``pervasively sectarian'' doctrine. We therefore
believe that when current precedent is applied to a substance abuse
program, or to the SAMHSA Charitable Choice provisions, government may
fund all service providers, without regard to religion and free of
criteria that require the provider to abandon its religious expression
or character.

Definition of Religious Organization. (Secs. 54.2 and 54.2a)

In the NPRM, the Department defined ``religious organization'' as a
``non-profit religious organization,'' consistent with 42 U.S.C.
290kk(c)(6). This definition covers the breadth of organizations that
could potentially apply for federal funding under the Charitable Choice
Regulations.
Comments: Six commenters requested a more detailed definition of
``religious organizations'' and some offered suggestions including
using the tax code definition of ``religious organization.'' The
commenters felt it was important to know to which organizations the
Charitable Choice regulations applied.
Response: Throughout the proposed rule, we used the term
``religious organization'' and the term ``faith-based organization''
interchangeably. Neither the U.S. Constitution nor the relevant Supreme
Court precedents contain a comprehensive definition of religion or a
religious organization that must be applied to this rule. Yet, an
extensive body of judicial precedent provides the practical guidelines
that States and religious organizations need to conform to the
Establishment and the Free Exercise Clauses of the First Amendment to
the U.S. Constitution. In addition, following investigation into the
definition provided by the tax code, the Department determined that the
definition did not serve to provide more clarity to the definition in
the preamble. Therefore, the Department, in the final rule, has not
further defined that term. Please note that the Department is planning
to ask organizations to identify whether they are religious
organizations as part of a survey entitled Survey on Ensuring Equal
Opportunity for Applicants.
Comment: Several commenters asked that the final rule provide
additional guidance on how to comply with the Establishment Clause and
that it detail the scope of religious content that must be excluded
from public funding.
Response: In enacting the Charitable Choice provisions, Congress
did not include specific statutory provisions with guidance on how to
meet constitutional requirements. Like Congress, we do not believe it
is appropriate in this rule to provide either States or religious
organizations with detailed guidance on how to comply with the
Establishment or Free Exercise Clauses of the Constitution. States and
faith-based organizations have years of experience and extensive
practice in following case law and adhering to judicial precedent to
conform to these provisions. In enacting the SAMHSA Charitable Choice
provision, Congress sought to conform the law to this precedent while
providing maximum flexibility to the States in carrying out statutory
requirements. The requirement in the proposed rule closely mirrors the
statutory provision and we have retained the identical language of the
proposal in the final rule.

Restriction on Religious Activities by Organizations that Receive
Funding Directly from SAMHSA. (Secs. 54.2 and 54a.2)

In the NPRM, the Department defined ``inherently religious'' as
including ``worship, proselytization, or instruction.'' Faith-based
organizations cannot use Federal funds to support such activities.
Comment: Many commenters addressed the issue of what constitutes
``inherently religious activities.'' Some groups stated that the
definition provided in the NPRM, of ``worship, proselytization, or
instruction,'' did not clarify sufficiently what activities could be
funded by federal funds. They noted that questions of what constitutes
religious content and the religious nature of program must be
addressed. Without this clarification, the provision opens the door to
other activities--including desirable ones such as providing food and
shelter--that may be undertaken for religiously informed reasons being
ruled ineligible for SAMHSA funding support.

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Response: The Charitable Choice regulation maintains that the
organization's inherently religious activities must be kept separate--
i.e., in time or location--in order to prevent the organization from
using some or all of the SAMHSA funds provided to it to further its
inherently religious activities. The inherently religious activities
must be funded privately in their entirety.
For example, a church has a contract with SAMHSA to provide a
substance abuse prevention class. The class is held in the finished
basement of the church, the same place where the pastor of the church
holds a Bible study group at the end of the day, when all other classes
have ended. The pastor has extended an open invitation for anyone who
wishes, to attend the study group. The church must use private funds to
pay for this Bible study activity. Thus, faith-based organizations that
receive direct SAMHSA funds must take steps to separate, in time or
location, their inherently religious activities from the SAMHSA-funded
services that they offer.
In addition, any participation by a program beneficiary in
inherently religious activities must be voluntary. An invitation to
participate in an organization's religious activities is not in itself
inappropriate. However, directly funded religious organizations must be
careful to reassure program beneficiaries that they will receive
services or benefits even if they do not participate in these
activities, and that their decision will have no bearing on the
services they receive. In short, any participation by recipients of
services in such religious activities must be voluntary and understood
to be voluntary.
As some of the commenters noted, it would be difficult to establish
an acceptable list of all inherently religious activities. Inevitably,
the definition would fail to include some inherently religious
activities or include certain activities that are not inherently
religious. Our approach is consistent with Supreme Court precedent,
which likewise has not comprehensively defined inherently religious
activities. The Court has explained, however, that prayer and worship
are inherently religious, but that social services do not become
inherently religious merely because they are conducted by individuals
who are religiously motivated to undertake them or view the activities
as a form of ``ministry.''
Comment: Other commenters were concerned because the potential for
violating the requirement to separate religious and non-religious
components of a program is heightened in the area of substance abuse
services, which is sometimes viewed as a spiritual problem.
Response: The restrictions on inherently religious activities by
organizations that receive funding directly from SAMHSA \1\ remain the
same as those described in the proposed rule. The Department agrees
that these activities include worship, religious instruction, and
proselytization. (Other basic examples include prayer meetings and
devotional studies of sacred texts.) The right to maintain a group's
religious character does not include the right to use government funds
to pay for inherently religious activities or materials.
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\1\ In the Charitable Choice context, the term ``direct''
funding is used to describe funds that are provided ``directly'' by
a governmental entity or an intermediate organization with the same
duties as a governmental entity, as opposed to funds that an
organization receives as the result of the genuine and independent
private choice of a beneficiary. In other contexts, the term
``direct'' funding may be used to refer to those funds that an
organization receives directly from the Federal government (also
known as ``discretionary'' funding), as opposed to funding that it
receives from a State or local government (also known as
``indirect'' or ``block grant'' funding). In these proposed
regulations, the term ``direct'' has the former meaning.
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Comment: Questions were also raised about whether 12-step programs
or, specifically, AA programs, are religious programs.
Response: With regard to the 12-step and AA meetings, we note that
any inherently religious activities must be voluntary and must be
offered separately in time or location from the program that receives
direct SAMHSA funding.
Comment: A commenter stated that the exclusion of all ``inherently
religious'' activities from government funding is flawed, and puts many
faith-based organizations in the position of having to choose either to
deny their core religious perspectives on social issues or to reject
government funds for their programs that accomplish the government's
objectives.
Response: This limitation on the use of the direct funds, which
tracks the SAMHSA Charitable Choice statute, is not meant to put an
organization in the position of having to deny its religious
perspectives on social issues, or in the position of having to reject
government funds for its programs that are consistent with the purposes
of the SAMHSA program. We recognize that while the government regards
services like feeding the hungry or helping substance abusers return to
their communities as social services or secular work, some
organizations may regard these same activities as acts of mercy,
spiritual service, fulfillment of religious duty, good works, or the
like. Therefore, providing social services that otherwise satisfy the
requirements for funding under a government program--e.g., providing
food for the hungry or helping substance abusers rejoin their
communities--would constitute an appropriate use of funds, as long as
government funds are not used to pay for inherently religious
activities such as prayer and worship.
Comment: Several commenters recommended that the phrase ``separate
in time or location'' be changed to ``separate in time and location.''
According to the commenter, this would ``prevent a religious provider
from completing a service component, and then moving directly into a
prayer service without notice or a break.''
Response: The Department has decided to leave the final regulation
as it was stated in the NPRM. Changing the regulation in the suggested
way would place an undue burden on the providers and is not legally
necessary. For example, such a rule would impose an unnecessarily harsh
burden on small religious organizations, which may have access to only
one location that is suitable for the provision of SAMHSA-funded
services. As to the commenter's fear that a provider may move directly
from the service component into a prayer service without notice or
taking a break, it should be noted that the rule makes it clear that
religious activity must be separated in time or location from the
SAMHSA-funded services and participation by a beneficiary must be
voluntary. We believe the rule adequately addresses this situation.

Equal Treatment for Religious Organizations. (Sec. 54.3 and 54a.3)

Under SAMHSA's Charitable Choice provisions, organizations are
eligible to participate in SAMHSA programs without regard to their
religious character or affiliation, and organizations may not be
excluded from the competition for Federal funds because they are
religious. Specifically, religious organizations are eligible to
compete for funding on the same basis, and under the same eligibility
requirements, as all other nonprofit organizations.
Comments: Eleven commenters said that faith-based providers should
be held to the same program standards that are applicable to other
providers. Commenters felt that without such a standard, faith-based
organizations would have an unfair advantage in providing services, and
that the overall effect would be lower standards of care.
Response: These regulations are established in accordance with the
law

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to provide evenhanded treatment of SAMHSA program participants--that
is, to ensure that religious organizations are not discriminated
against on the basis that the religious organization has a religious
character. These regulations do not establish a preference for faith-
based organizations and, much like the Charitable Choice laws, in fact,
provide that ``nothing in these regulations shall restrict the ability
of the Federal government, or a State or local government, from
applying to religious organizations the same eligibility conditions in
applicable programs as are applied to any other nonprofit private
organization.''
Comment: One commenter felt that the NPRM failed to distinguish
between ``discrimination and the application of special rules required
to protect the character of religious organizations.'' Another
commenter suggested that the final rule should also prohibit
discrimination ``in favor of'' faith-based organizations. In selecting
contractors, a government entity should not allow a provider's
religious character to influence its selection.
Response: According to other comments received from faith-based
organizations, most groups recognize that the regulations and the
Charitable Choice laws serve to protect program recipients and are
consistent with the Establishment Clause. These regulations do not
establish a form of discrimination or preferential treatment, but
rather deal with the special situation involved in the funding of
religious organizations. Nothing in the regulations is intended to
preclude those administering the program from accommodating religious
organizations in a manner consistent with the Establishment Clause.
Comment: A couple of commenters, noting the importance of the equal
treatment provisions, observed that the proposed rule is consistent
with the statute and strongly supported retention in the final rule.
Response: We agree with these comments and have retained similar
language in the final rule.
Comment: One commenter noted that the provisions equate religious
and non-religious providers and seek to treat them as equals, thereby
failing to recognize the unique place that religion has in our society.
This commenter believed that religion should be above the fray of
government funding, regulation and auditing, not reduced to it.
Response: This rule does not present any violation of
constitutional church-state principles. Rather, this rule governs the
conscious decision of a religious organization to administer regulated
activities, by accepting public funds to do so. Therefore, consistent
with the SAMHSA Charitable Choice laws, we have retained language that
enables faith-based organizations to compete on an equal footing for
funding, within the framework of constitutional church-state
guidelines. This does not in any way denigrate the special place of
religion in the Constitution or its unique role in society. As the
Supreme Court has recognized, respect for religious freedom at times
permits (and at times requires) treating religion on an equal basis.

Nondiscrimination Against Beneficiaries. (Sec. 54.7 and 54a.7)

This provision of the NPRM restated the statutory requirement that
programs receiving federal funding may not discriminate against program
recipients on the basis of their religion or religious beliefs or a
refusal to actively participate in a religious practice.
Comment: Many of the commenters expressed concern over the use of
the word ``active'' in setting forth the prohibition from
discriminating against beneficiaries or potential beneficiaries on the
basis of religion, a religious belief, a refusal to hold a religious
belief, or a refusal to actively participate in a religious practice.
They believed that the word ``actively'' implies that beneficiaries are
not protected if they refuse to passively participate in religious
practices. They also believed that faith-based organizations could
compel beneficiaries to attend activities like sermons, prayers, and
religious lectures, or force beneficiaries to bow their heads or remain
standing during the delivery of proselytizing messages, religious
instruction or worship. Further, they interpreted the word ``active''
to allow the delivery of such messages using facilities and equipment
funded by the government. They believed this word opens the door
wherein vulnerable clients may be exposed to inappropriate ``passive''
religious practices. The commenters recommended removing the word
``actively'' from the final regulations.
Response: In enacting the SAMHSA Charitable Choice provisions,
Congress provided that program participants may not discriminate
against program beneficiaries ``on the basis of religion, a religious
belief, or a refusal to actively participate in a religious practice.''
42 U.S.C. 300x-65(f). Further, Congress stipulated that the religious
freedom of beneficiaries may not be diminished and provided that
beneficiaries who object to the religious character of a service
provider have a right to an alternative provider. These provisions are
straightforward and are sufficient to protect the religious freedom of
program beneficiaries. Accordingly, we have retained the language of
the proposed rule, which is based on Congress's own language. We
reiterate, however, as indicated in the rules at sections 54.4 and
54a.4, that inherently religious activities are not to be made part of
a program that is directly funded by SAMHSA. Inherently religious
activities, such as prayer and worship, may only be offered to
beneficiaries on a voluntary basis and must be provided separately, in
time or location.
Comment: The commenters suggested that we strengthen the provision
in this subsection so clients may not be coerced, explicitly or
tacitly, to participate in religious activities, or feel pressured to
participate in such activities. Individuals in need are not always in a
condition to make a thoughtful and well-considered decision whether or
not to participate in worship or similar activities offered by a
religious social service provider, particularly when the individual is
in great need of the service.
Response: We believe that the provision suffices as written.
However, we will use this opportunity to reaffirm that a person's
participation in any religious activities must be entirely voluntary.
Beneficiaries of directly funded SAMHSA services have the right not to
take part in any religious practices to which they object. Therefore,
they may, at any time, refuse to participate in inherently religious
activities. We recommend that States and organizations help to ensure
that clients and prospective clients have a clear understanding of the
services offered by an organization by having literature available to
give to the client which fully explains the services offered, including
any inherently religious activities, as well as the individual's
rights.
Comment: One commenter wrote that the rules should clarify that
individuals who refuse to participate in the inherently religious
activities will not be excluded from the program and will not suffer
any discrimination in the administration of the program. Congress
specified that Federal funds may not be used for religious purposes,
but the rules provide no enforcement mechanism, so beneficiaries have
no administrative relief if violations occur.
Response: The SAMHSA Charitable Choice provision explicitly
prohibits a religious organization from discriminating against a
participant on the basis of religion, religious belief, or

[[Page 56434]]

refusal to actively participate in a religious practice. For example,
if the service provider is a faith-based organization, that
organization may not discriminate against the individual on account of
religion or a religious belief. In addition, the faith-based
organization may not turn away a beneficiary from the organization's
program solely because the beneficiary refuses to participate in an
inherently religious practice. Hence, this provision ensures the
beneficiary's right not to take part in any inherently religious
practices to which he or she objects. The individual's participation in
an inherently religious activity must be entirely voluntary. Likewise,
it is well established that government may not compel an individual,
through material penalty or loss of public benefit or advantage, to
profess a religious belief or to observe an inherently religious
practice.
Comment: One commenter wrote that the proposed rule does not
require a secular alternative. Therefore, it lacks constitutionally
required safeguards for beneficiaries. Another commenter suggested that
beneficiaries should be referred to programs to which they have no
religious objection.
Response: The proposed rule provided that if the applicant or
recipient objects to the religious character of a SAMHSA service
provider, he or she is entitled to an alternative provider to which the
individual has no religious objection. This is in keeping with the
SAMHSA Charitable Choice provisions, which require that the beneficiary
be provided assistance from ``an alternative provider.'' The Charitable
Choice statute does not specify that the alternative provider needs to
be a secular organization; it need only be a provider to which the
beneficiary has no objection (unless, of course, the beneficiary
objects to the religious character of all faith-based providers, in
which case he is entitled to a secular alternative). We have chosen not
to adopt this suggestion for three reasons. First, some beneficiaries
may prefer an alternative religious organization, rather than a secular
organization, and we prefer to provide beneficiaries with as many
choices as possible. Second, the Charitable Choice statute prohibits
direct funding of inherently religious activities (which must also be
voluntary), and many faith-based organizations in any case deliver
their services in a secular manner. As a result, most beneficiaries do
not object to the religious character of these organizations, and we do
not want to exclude them as potential providers of service. Third,
under the permissive statutory language that we have retained, State
and local governments may offer a secular alternative. We believe
States will implement this requirement in a manner consistent with
their obligation to ensure compliance with the Establishment Clause of
the First Amendment.
Comment: One commenter would like us to recognize that religious
organizations and secular organizations sometimes discriminate on the
basis of sexual orientation or gender identity. The commenter suggested
that we develop a regulation banning religious, sexual orientation and/
or gender identity discrimination with Federal or other public funds.
Response: Religious and secular organizations alike must follow
Federal civil rights laws prohibiting discrimination on the bases of
race, color, national origin, gender, age, and disability. However, the
Federal civil rights laws are silent on discrimination on the basis of
sexual orientation, and we decline to impose such restrictions by
regulation.
Comment: Several commenters noted that if religious organizations
are providing program services and facilities, then they must be in
compliance with the Americans with Disabilities Act (ADA).
Response: It is beyond the scope of these regulations to address
how various civil rights laws might apply in all situations. As noted
previously, organizations providing programs services and facilities
must comply with Federal civil rights laws to the extent those laws are
applicable. We note that section 307 of the Americans with Disabilities
Act of 1990 excludes religious organizations or entities controlled by
religious organization, including places of worship, from coverage
under the provision that deal with public accommodations. On the other
hand, there exist a number of other Federal prohibitions against
discrimination on the basis of disability. For example, section 504 of
the Rehabilitation Act of 1973, and its implementing regulations at 45
CFR part 84, prohibit discrimination on the basis of disability in
programs or activities receiving Federal financial assistance.

Religious Character and Independence. (Sec. 54.5 and 54a.5)

Sections 54.5 and 54a.5 of the final rule clarify that a religious
organization that participates in the SAMHSA program retains its
independence from Federal, State, and local governments, provided that
it does not use direct SAMHSA funds to support inherently religious
activities. It may continue to carry out its mission, including the
definition, practice, and expression of its religious beliefs. Among
other things, religious organizations may use their facilities to
provide SAMHSA-funded services, without removing religious art, icons,
scriptures, or other symbols. In addition, a religious organization
that receives SAMHSA funds may retain religious terms in its
organization's name, select its board members on a religious basis, and
include religious references in its organization's mission statements
and other governing documents.
Comment: A number of commenters expressed concern that a religious
organization in receipt of SAMHSA funds does not have to remove the
religious art, icons, scriptures, or other symbols. The commenters
think that this provision is too broad. It could result in the
organization providing services in a setting that may well constitute a
``pervasively sectarian'' atmosphere in which members of a different
religion may not feel comfortable or welcome to receive their SAMHSA-
funded benefits. For example, the organization could conduct the
government-funded program in a chapel, leading to a reasonable
misperception of government endorsement of or support for religion.
Response: The SAMHSA Charitable Choice provisions impose on the
government a duty not to intrude into the institutional autonomy of
religious organizations. Specifically, each participating faith-based
organization in receipt of SAMHSA funds ``shall'' retain its
independence from Federal, State and local governments. This
independence includes control over the definition, development,
practice, and expression of its religious beliefs. In addition, the
statutes expressly prohibit State, Federal, and local governments from
requiring a religious organization to alter its form of internal
governance or remove religious art, icons, scripture, or other symbols
in order to be eligible to receive directly funded SAMHSA funds to
provide services to beneficiaries. And, it should be noted that, if the
beneficiary objects to the religious character of the organization,
then he or she is entitled to receive the service from an alternate
provider to which the beneficiary has no religious objection.
Finally, as noted above, the Supreme Court's ``pervasively
sectarian'' doctrine no longer enjoys the support of a majority of the
Court. See Mitchell v. Helms, 530 U.S. 793, 825-829 (2000) (plurality
opinion); id. at 857-858 (O'Connor, J., concurring in judgment,

[[Page 56435]]

joined by Breyer, J.) (requiring proof of ``actual diversion of public
support to religious uses''). Accordingly, the Department (like
Congress) does not believe that the Constitution requires exclusion of
organizations that are governed by religious organizations or whose
facilities contain religious symbols.

Employment Practices. (Sec. 54.6 and 54a.6)

The NPRM restated the SAMHSA's Charitable Choice provisions, which
provide that a religious organization's exemption provided under
section 702 of the Civil Rights Act of 1964 regarding employment
practices shall not be affected by its participation in, or receipt of
funds from, a designated program. To the extent that 42 U.S.C. 300x-
57(a)(2) or 42 U.S.C. 290cc-33(a)(2) imposes religious
nondiscrimination requirements on the employment practices of program
participants, the NPRM clarifies that such requirements do not apply to
program participants that demonstrate that these requirements would
substantially burden their exercise of religion.
Comments: Numerous comments were received dealing with the
employment practices provisions in the proposed rule. Nineteen out of
23 comments made about this provision supported the removal of the
provision from the final rule. Many commenters felt that the Religious
Freedom Restoration Act (RFRA) was an inappropriate basis for the
regulation and did not provide the statutory authority to overrule the
broad anti-discrimination provision in SAMHSA's authorizing legislation
for the Substance Abuse Prevention and Treatment (SAPT) block grant in
the Public Health Service Act. They argued that religious groups would
not be substantially burdened by having to comply with these
requirements, and that, in any event, the government had a compelling
interest in imposing the requirements.
Response: The Department does not agree with the comments. We
believe that, in addition to being a reasonable construction of the
SAMHSA Charitable Choice provision, the inapplicability of the
discrimination provisions of the SAPT block grant program and the PATH
program, 42 U.S.C. 300x-57(a)(2) and 42 U.S.C. 290cc-33(a)(2), to
religious organizations that demonstrate a substantial burden on their
exercise of religion follows from RFRA. Under RFRA, the government may
not impose legal requirements that substantially burden a grantee's
exercise of religion unless doing so is the least restrictive means of
furthering a compelling government interest. 42 U.S.C. 2000bb-1(b).
Accordingly, where a religious entity establishes that its exercise of
religion would be substantially burdened by the religious
nondiscrimination provisions cited above, RFRA supercedes those
statutory requirements, thus exempting the religious entity therefrom,
unless the Department has a compelling interest in enforcing them.
The Department's rationale in this regard is set out in the NPRM.
See 67 FR 77350, 77351-77352 (Dec. 17, 2002). Several points, however,
merit elaboration. First, the Department recognizes that not all
religious organizations that might receive funding under the SAPT block
grant and PATH programs would be substantially burdened by the
application of the religious nondiscrimination requirements of 42
U.S.C. 300x-57(a)(2) and 42 U.S.C. 290cc-33(a)(2). For example, some
religious organizations are concerned only with their employees'
commitment to providing social services, not with any profession of
faith, and thus do not consider religion in hiring people to perform
such services. Such groups would not likely be burdened by having to
comply with a religious nondiscrimination requirement. Many other
religious organizations, however, consider religious faith critical to
all of their employees' activities, including those that involve
providing government-funded social services to the public. For these
groups, imposition of a religious nondiscrimination requirement can
impose a particularly harsh burden. As Justice Brennan explained:
``Determining that certain activities are in furtherance of an
organization's religious mission, and that only those committed to that
mission should conduct them, is * * * a means by which a religious
community defines itself.'' Corporation of Presiding Bishop v. Amos,
483 U.S. 327, 342 (1987) (Brennan, J., concurring). For groups that
deem religious faith an important part of their self-definition, having
to make employment decisions without regard to their faith would
substantially alter the charter of their organization.
In recognition that the religious nondiscrimination requirements of
42 U.S.C. 300x-57(a)(2) and 42 U.S.C. 290cc-33(a)(2) would
substantially burden some but not other grantees, the RFRA exemption is
limited to those organizations that are able to certify that: (1) They
sincerely believe that employing individuals of a particular religion
is important to the definition and maintenance of their religious
identity, autonomy, and/or communal religious exercise; (2) they make
employment decisions on a religious basis in analogous programs; (3)
the grant in question would materially affect their ability to provide
the type of services in question; and (4) providing the services in
question is expressive of their values or mission. We disagree,
however, with some commenters' assertion that no religious organization
would be substantially burdened by having to make hiring decisions
without regard to their faith while participating in the SAMHSA
program.
Second, the fact that SAMHSA is a funding program does not mean
that the Federal government necessarily possesses a ``compelling
interest'' in imposing religious nondiscrimination provisions upon the
employment practices of participating religious organizations. To begin
with, religious organizations' exemption from the religious
nondiscrimination requirements of Title VII (the availability of that
exemption is expressly clarified by the SAMHSA Charitable Choice law,
42 U.S.C. 290kk-1(e), 300x-65(d)(2)) reflects Congress's judgment that
employment decisions are an important component of religious
organizations' autonomy, and that the government has a much stronger
interest in applying a religious nondiscrimination requirement to
secular organizations than to religious organizations'many of whose
existence depends upon their ability to define themselves on a
religious basis. Moreover, many federal funding programs--including the
discretionary grant programs administered by the Secretary under Title
V of the Public Health Service Act--do not impose a religious
nondiscrimination requirement upon the employment practices of
grantees. Rather, Congress's application of religious nondiscrimination
requirements in the employment context is quite selective, which makes
it difficult to regard the government as having a compelling interest
in imposing such a requirement in this particular context. Finally,
secular entities that administer federally funded social programs
generally are not barred from considering their ideologies in making
employment decisions. In this respect, allowing faith-based grantees to
consider religious motivation in hiring simply levels the playing
field, allowing them to consider ideology on the same basis as other
organizations.
Comment: Several commenters agreed that the proposed rule regarding
the Title VII exemption reflects a proper understanding of civil rights
law. When

[[Page 56436]]

a faith-based organization receives government funding and hires staff
on a religious basis, the Federal civil rights law is not violated.
Response: We agree with these commenters and have retained the
identical language in the final rule. This statutory and regulatory
provision of Charitable Choice does not change the status quo; it
simply clarifies applicability of the Title VII exemption under the
SAMHSA Charitable Choice law.
Comment: Several commenters believed that the proposed rule allows
employment discrimination in violation of constitutional prohibitions
and court decisions that have struck down government-funded
discrimination. One commenter explicitly stated that this provision
runs afoul of the ``no-religious-tests clause'' of the Constitution
under which ``no religious test shall ever be required as a
qualification to any office or public trust under the United States.''
Other commenters stated that the exemption from Title VII of the Civil
Rights Act was never intended to permit a religious organization to
favor co-religionists in hiring when using Federal funds to pay the
salaries and wages of employees who are carrying out government-funded
social service programs.
Response: We do not agree that these comments accurately portray
the law. In 1972, Congress broadened section 702(a) of the Civil Rights
Act to exempt religious organizations from the religious
nondiscrimination provisions of Title VII, regardless of the nature of
the job at issue. The broader, amended provision was unanimously upheld
by the Supreme Court in 1987 and, absent a specific statutory repeal,
remains applicable even when religious organizations are delivering
federally funded social services. Thus, although section 702(a) of the
Civil Rights Act of 1964 is permissive--it does not require religious
staffing--religious organizations may consider their faith in making
employment decisions without running afoul of Title VII. The effect of
the explicit preservation of the Title VII exemption is no different
from the rule that applies in other programs that are simply silent on
the question of the applicability of Title VII in the funding context,
and, as noted above, there are many such programs. Concerning the
commenters' suggestion that allowing a federally funded organization to
consider faith in making employment decisions would violate the ``no
religious test'' clause of the Constitution, we would simply note that
it is well settled that the receipt of government funds does not
convert the employment decisions of private institutions into ``state
action'' that is subject to constitutional restrictions such as the
``no religious test'' clause.
Comment: Several commenters noted that the clause--``nothing in
this section shall be construed to modify or affect any State law or
regulation that relates to discrimination in employment''--did not
address local laws and asked us to clarify in the final rule that the
Charitable Choice provisions do not preempt any State or local law that
relates to discrimination in employment.
Response: This provision of the SAMHSA Charitable Choice law
preserves a ``Federal or State law or regulation that relates to
discrimination in employment.'' 42 U.S.C. 290kk-1(e). In contrast, 42
U.S.C. 290kk-1(d)(1) provides that a religious organization
participating in the program ``shall retain its independence from
Federal, State, and local government * * *'' Congress thus was
cognizant of the distinction between State and local law in drafting
the SAMHSA Charitable Choice statute, and we believe that the existing
language faithfully implements the statute.
Comment: One commenter wanted the Department to clarify under
section 54.6(b) that the certification that is required to show that
its religious exercise would be substantially burdened by the
nondiscrimination requirements under the SAPT block grant and PATH
programs should be submitted to SAMHSA.
Response: The Department does not believe that it is necessary for
the subgrantees to provide such documentation to SAMHSA unless SAMHSA
requests it, as indicated previously in the proposed rule which is now
finalized.
Comment: One commenter pointed out that oversight of the employment
practices would generate an administrative burden on the States.
Response: The Department recognizes this possibility of generating
an administrative burden on the States and has included extensive
flexibility for the implementation of the provision by the States.

Notice, Referral, and Provision of Alternative Services. (Sec. 54.8 and
54a.8)

If an otherwise eligible program beneficiary or prospective
beneficiary objects to the religious character of a program
participant, within a reasonable period of time after the date of such
objection, such program beneficiary must be referred to an alternative
provider that has the capacity to provide the services, is accessible,
and is of at least equal value as the provider to which the beneficiary
objected. Under SAMHSA's Charitable Choice provisions, the
responsibility for providing the alternative services rests with the
``the appropriate Federal, State, or local government'' that
administers the program or is a program participant. The NPRM proposed
that States provide and fund alternative services for SAPT block grant-
funded beneficiaries and PATH program beneficiaries who have objected
to the religious character of a program participant. States may use
SAPT block grant and PATH grant funding to provide and fund such
services from a provider to which the program beneficiaries do not have
a religious objection, in a manner consistent with State law and
policy.
With respect to SAMHSA discretionary grant funding, when SAMHSA
provides funding directly to another unit of government, such as a
State or local government, that unit of government is responsible for
providing the alternative services. When SAMHSA provides discretionary
grant funding directly to nongovernmental organizations, SAMHSA is the
responsible unit of government.
Comments: All thirteen States and eleven providers that commented
on the NPRM urged more flexibility for the States and providers in
implementing these provisions. Fourteen of these commenters had
concerns about the administrative and fiscal burden occasioned by this
provision. Several were concerned that an ``essentially duplicate
system of care'' would have to be developed, ``with the faith-based
community in charge of deciding, by default, what services must be
duplicated in order to assure that the beneficiary has freedom of
choice.'' Others appreciated the discretion we had provided to States,
but were concerned that the expectation of alternative services may
expose States to litigation based on availability and how they define
comparable services. Finally, one State commenter recommended that
``[I]f SAMHSA is interested in minimizing administrative costs, I
recommend that these requirements be eliminated in lieu of existing
State requirements.''
At the same time, other commenters believed that the proposed rule
left too much discretion to States to define the terms ``reasonably
accessible,'' ``a reasonable period of time,'' ``comparable,''
``capacity,'' and ``value that is not less than.'' These commenters
asked that we either provide Federal definitions for these terms, or
establish baseline parameters or guidelines.

[[Page 56437]]

Response: After carefully considering these concerns, the
Department agrees that it is important to provide flexibility to the
States in determining how to establish procedures for notice, referral,
and provision of alternative services. As noted in the NPRM, the
Department recognizes that a range of methods that fulfill these
responsibilities is possible. Therefore, the Department does not seek
to prescribe a single, inflexible referral and alternative provider
system that States must adopt when States are the responsible units of
government. The Department believes it is vital to any effective
implementation of these provisions that SAMHSA, State and local
agencies, and religious organizations work cooperatively to develop
systems to comply with these provisions, monitor compliance, identify
compliance problems and take necessary corrective actions.
SAMHSA's Charitable Choice provisions apply to three different
granting situations. The first is when the State itself is the
recipient of SAPT block grant and PATH formula funds or when the States
receive a discretionary grant from SAMHSA. Because of the broad range
of State circumstances, coupled with the States' proven success in
establishing systems to address such circumstances, States may develop
referral and alternative service systems that are compatible with the
treatment and prevention systems they administer, including reasonably
defining and applying the terms ``reasonably accessible,'' ``a
reasonable period of time,'' ``comparable,'' ``capacity,'' and ``value
that is not less than.'' SAMHSA will work with the States as they
develop their implementation plans, providing technical assistance and
opportunities for the States to discuss implementation approaches with
one another. Allowing the States such discretion will not require the
development of duplicate systems and will reduce regulatory and
paperwork burden.
The second situation is when SAMHSA awards discretionary funds
directly to local governments. The third is when SAMHSA awards
discretionary funds directly to faith-based nonprofit organizations.
The unit of government responsible for providing and funding
alternative services in these situations is defined at section 54a.8 as
follows:

``With respect to SAMHSA discretionary programs, for purposes of
determining what is the appropriate Federal, State, or local
government, the following principle shall apply: When SAMHSA
provides funding directly to another unit of government, such as a
State or local government, that unit of government is responsible
for providing the alternative services. When SAMHSA provides
discretionary grant funding directly to a nongovernmental
organization, SAMHSA is the responsible unit of government.''

Therefore, in the second circumstance, when SAMHSA awards
discretionary funds to local governments, local governments are
responsible for providing alternative services for program
beneficiaries who may object to a faith-based program they are funding
with SAMHSA funds. SAMHSA expects that local governments will work with
the States and comply with the implementation approach adopted by their
respective States.
In the third circumstance--when SAMHSA provides discretionary funds
directly to faith-based organizations--SAMHSA will work with those
organizations and consult with the States to ensure that program
beneficiaries are provided alternative services in accordance with the
statutory and regulatory requirements. As provided in the rule in
section 54a.8(e), if there are no publicly funded alternatives
available for the beneficiary, these grantees must contract with an
alternative provider for the provision of such services, and the
grantee may use the SAMHSA grant funds to finance the services. Should
a grantee incur unanticipated additional costs as a result of providing
alternative services beyond the discretionary grants awarded, the
grantee may request reimbursement of those funds from SAMHSA, as the
responsible unit of government, in the form of a request for
supplemental funds to cover unanticipated costs. Based the past
experience of other HHS agencies in implementing similar provisions,
objections to the religious character of program participants have been
rare, which is perhaps unsurprising in light of the fact that
beneficiaries may not be required to participate in any inherently
religious activities as a condition of receiving services. Thus, SAMHSA
expects that such an occurrence will be infrequent and only occur when
the referral is to a private provider. While the specific circumstances
will vary from jurisdiction to jurisdiction, we anticipate that in many
cases, referrals will be made to programs that are funded, at least in
part, from public funds, and therefore the burden of this requirement
will not be substantial.
Comment: SAMHSA posed certain questions to commenters in the
Federal Register Notice about what commenters thought constituted
``reasonable period of time,'' ``reasonably accessible services,'' and
what the best understanding of ``services that* * * have a value that
is not less than the value of [services that would otherwise be
provided].''
Commenters provided the following input in response:
[sbull] With regard to ``reasonable period of time,'' commenters
suggested this would be anywhere from 24 hours after a request for
alternative services to 4-6 weeks after such request. Most commenters
reiterated that the States should determine what ``a reasonable period
of time'' is.
[sbull] With regard to what ``reasonably accessible services'' are,
commenters urged a focus on comparable level of care and reasonable
accommodation. They noted that in large cities it may be easy to effect
a referral to an alternative provider, but in smaller communities and
rural areas, there may be only one existing licensed provider in the
county.
[sbull] With regard to what constitutes equivalent services,
commenters recommended that this phrase be interpreted to mean the
value of the services themselves, without regard to the administrative
costs involved.
Response: Although commenters made many good suggestions for
defining these terms, the wide variety of responses to the questions
SAMHSA raised underscores the need for State flexibility and the need
for Departmental restraint in defining terms or regulating procedures
for referral and provision of alternative services.
Comment: Commenters asked for clarification of ``how these
recipients would fund and deliver services from alternative
providers.'' Another commenter offered the opinion that States would
need to establish formal set-asides within discretionary grants to
cover alternative placements.
Response: As indicated above, the regulation (consistent with the
statute) requires the ``responsible unit of government'' to provide and
fund alternative services. With regard to the suggestion for set-
asides, Federal cost policies do not permit grantees to have set-aside/
contingency dollars.
Comment: Several commenters were concerned about the ``excessive
burden on the treatment program to monitor the action of an individual
who has not been admitted to its program and for whom the program is
not receiving funding.'' In particular, several commenters noted
``faith-based organizations should not bear the burden of securing and
financing alternative services.''
Response: SAMHSA considered these comments carefully in finalizing
this rule, and has concluded that, when SAMHSA is the responsible unit
of

[[Page 56438]]

government (that awards discretionary funds directly to a religious
organization), it will follow the rule that applies to the other
granting circumstances--that is, the grantee (which may be the State,
the local government, or in this instance, the religious organization)
will use grant funds, if necessary, to cover the cost of securing and
providing alternative services. As indicated earlier, SAMHSA
anticipates that in many cases, referrals will be made to programs that
are funded, at least in part, from public funds, and therefore the
burden of this requirement will not be substantial.
Comment: With regard to the program participant's responsibility to
refer objecting program beneficiaries to alternative services, one
commenter recommended that a ``gateway'' referral system that takes
place before a beneficiary arrives at any provider be established and
administered by the government. In the same vein, another commenter
suggested that referral take place through ``coordination that
result[s] in referrals not requiring opt-outs.''
Response: State and local governments have the flexibility to
implement the requirement as they see fit so long as they meet all of
the statutory and regulatory requirements. The Department is not
mandating any one method.
Comment: Several commenters noted that the requirement to provide
alternative services places additional burdens on State agencies, when
the States are the responsible units of government, especially in rural
areas. A faith-based organization may be selected as the service
provider for a particular geographic area. Ensuring that an alternative
service provider is available could require the State to make dual sets
of services available, and thus increase costs. As a result, many of
these commenters suggested that the requirement to provide alternative
services is unreasonable. Some suggested that exceptions be permitted
or that the requirement should be eliminated. Others noted that with
this requirement, some States may choose not to contract out or provide
community-based services, especially in rural areas.
Response: SAMHSA's Charitable Choice provisions impose the
requirement to provide accessible and comparable assistance or services
within a reasonable period of time to an individual who has an
objection to the religious character of an organization. In the
proposed rule, with the exception of requiring notice and referral, we
did not expand or enhance the rights of beneficiaries to assistance
from an alternative provider, but simply clarified this statutory
right. We also left substantial discretion to the States to define
terms and carry out the statutory objectives. We are not free, however,
to eliminate the statutory requirement to provide alternative services.
We also believe that commenters may have potentially overestimated
the impact and potential burden of this requirement. Through the
Department's Administration on Children and Families' TANF program,
many faith-based organizations have a long history of contracting with
State and local governments to address the secular purpose of providing
assistance and services to needy families. In this situation, few
beneficiaries have objected to the religious nature of these providers,
which is perhaps unsurprising in light of the fact that, under TANF's
Charitable Choice provisions, any inherently religious activities must
be offered separately and on a voluntary basis. We also do not believe
that States will decide not to contract out or provide community-based
services in order to avoid this requirement. Since the statutory
Charitable Choice requirements have applied since 2000, we believe that
State and local governments are providing alternative services, in
compliance with the law, and discovering and enhancing procedures that
efficiently and effectively address this requirement.
Comment: Several provider commenters were concerned that faith-
based programs receiving SAMHSA funding ``should conform to principles
of religious tolerance and inclusiveness.''
Response: All recipients of SAMHSA funding are required to comply
with Sections 54.7 and 54a.7, dealing with nondiscrimination toward
program beneficiaries.
Comment: One State commenter was concerned about having to provide
notice and alternative services to beneficiaries in SAMHSA-funded
substance abuse prevention programs.
Response: SAMHSA appreciates this concern and recommends that
grantees contact their State's substance abuse agency to secure
information about alternative prevention services in the State. Many
States' governors have used SAMHSA State Incentive Grants (SIGs) to
coordinate their prevention systems, and, as a result, will have
comprehensive information on prevention services available in
particular areas.
Comment: One State offered implementation suggestions, including
that ``the provision of alternative services could be addressed in
contract language through a requirement that providers identify
services available for referral.'' Several States noted that they
already provide beneficiaries a choice of providers.
Response: The Department hopes that States will work with each
other to identify effective implementation approaches, such as those
noted above. We decline, however, to impose this particular requirement
across the board.
Notice
The SAMHSA Charitable Choice provisions require SAMHSA-funded
religious organizations providing substance abuse services, public
agencies that refer individuals to such SAMHSA-funded programs, and the
appropriate Federal, State, or local governments that administer these
SAMHSA-funded programs to ensure that notice is provided to
beneficiaries and prospective beneficiaries regarding alternative
services. It further requires the program participant to notify the
responsible unit of government of all such referrals.
Comments: Several commenters recommended that notice of
availability of alternative providers be given to all beneficiaries at
the outset.
Response: Below is a model notice that grantees may wish to use:

Model Notice to Individuals Receiving Substance Abuse Services

No provider of substance abuse services receiving Federal funds
from the U.S. Substance Abuse and Mental Health Services
Administration, including this organization, may discriminate
against you on the basis of religion, a religious belief, a refusal
to hold a religious belief, or a refusal to actively participate in
a religious practice.
If you object to the religious character of this organization,
Federal law gives you the right to a referral to another provider of
substance abuse services to which you have no religious objection.
The referral, and your receipt of alternative services, must occur
within a reasonable period of time after you request them. The
alternative provider must be accessible to you and have the capacity
to provide substance abuse services. The services provided to you by
the alternative provider must be of a value not less than the value
of the services you would have received from this organization.

In addition, section 54.8(b) and 54a.8(b) of the regulation has
been changed to add the word, ``all'' before ``program beneficiaries''
as follows:

Program participants, public agencies that refer individuals to
designated programs, and the appropriate Federal, State, or local
governments that administer designated programs or are program
participants shall ensure that notice is provided to all program

[[Page 56439]]

beneficiaries or prospective program beneficiaries of their rights
under this section. (Emphasis added.)

SAMHSA assumes that providers will be able to provide such notice
when program beneficiaries can understand their rights--which may be at
the outset of services.
Comment: Other commenters recommended States should be given
latitude to comply with the Notice requirements.
Response: The Department agrees. SAMHSA is providing a ``model
notice'' to the States and other grantees, but is not requiring them to
use this notice.
Comment: Another State commenter recommended that program
participant notify the State ``or responsible unit of government'' of
such referral.
Response: The Department will insert the suggested language, ``or
responsible unit of government'' in 54.8(c)(4).
Referral to Alternative Provider
If an individual objects to the religious character of the
substance abuse treatment or prevention program from which they are
receiving services, the religious organization (program participant)
must refer the individual, within a reasonable period of time, to
another provider of substance abuse services. The requirements
regarding referral are set out in sections 54.8(c) and 54a.8(c).
Comments: Several commenters felt that the government should
require that a non-religious alternative be available. On this point,
several asked whether a program beneficiary had to be referred to a
religious provider if that is the only alternative.
Response: The proposed rule at sections 54.8 and 54a.8 provided
that if the applicant or recipient objects to the religious character
of a SAMHSA service provider, he or she is entitled to an alternative
provider to which the individual has no religious objection. This is in
keeping with the SAMHSA Charitable Choice provisions at sections 582(f)
and 1955-(e) of the Public Health Service Act, 42 U.S.C. 290kk-1(f) and
300xx-65(e), which require States to provide the individual with
assistance from ``an alternative provider.'' Hence, the alternative
provider could, but does not have to be, a secular alternative (unless,
of course, the beneficiary objects to the religious character of all
faith-based providers). We have retained the wording of this provision.
Comment: One commenter wrote that the proposed rule does not
require a secular alternative. Therefore, it lacks constitutionally
required safeguards for beneficiaries.
Response: The Charitable Choice statute does not specify that the
alternative provider needs to be a secular organization. We have chosen
not to adopt this suggestion for three reasons. First, the purpose of
the statute is to respect beneficiary choice, and some beneficiaries
may prefer an alternative religious provider to an alternative secular
provider. Second, many faith-based organizations deliver services in a
secular manner. As a result, most beneficiaries will not object to the
religious character of these organizations, and we do not want to
exclude them as potential providers of service. Third, under the
permissive statutory language that we have retained, State and local
governments may offer a secular alternative. We believe States will
implement this requirement in a manner consistent with their obligation
to ensure compliance with the Establishment Clause of the First
Amendment.
Comment: Others wanted a more general requirement that the
government ensure the existence of at least one alternative service
provider to protect the rights of beneficiaries; on this point, several
States and providers noted the problem of the availability of
alternative services in a rural setting. In contrast, one State
stressed that the regulations ``must not require the establishment of
alternative providers where none currently exist.''
Response: The Department expects States, local governments and
other grantees to abide by the statutory and regulatory requirements
with respect to providing alternative services. We will work together
to ensure compliance. In addition, we note that the statute prohibits
grantees from using direct funding for inherently religious activities,
and that any such activities must be voluntary. These requirements are
sufficient to protect the religious freedom of beneficiaries.
Comment: Several commenters felt that the referral responsibility
should be the government's, rather that the religious organization's
(as a program participant).
Response: The Department is relying on the close cooperation among
SAMHSA, States, providers and religious organizations to develop
referral systems that are based primarily on shared responsibility.
Religious organizations can look to the responsible unit of government
for assistance, including access to SAMHSA's treatment facility locator
at http://findtreatment.samhsa.gov to identify providers in the
surrounding area. See the regulations for further detail.
Comment: Several commenters, mainly providers, underscored the
importance of ensuring that the confidentiality protections, including
those provided in 42 CFR part 2 and HIPAA, are complied with; others
were concerned, however, that confidentiality rules would block
information sharing between religious organizations and secular
providers.
Response: The SAMHSA Charitable Choice laws do not override the
confidentiality laws of 42 CFR part 2 and HIPAA. Therefore, the final
regulations will contain the same provision from the NPRM in section
54.8(c)(3), as follows:

All referrals shall be made in a manner consistent with all
applicable confidentiality laws, including, but not limited to, 42
CFR part 2 (``Confidentiality of Alcohol and Drug Abuse Patient
Records'').

Comment: Two State commenters were concerned that SAMHSA's
Charitable Choice provisions confer a ``special entitlement'' to
certain beneficiaries to services, similar to that of the ``priority''
set-aside populations currently listed in SAPT block grant law.
Response: With regard to a ``special entitlement'' being created,
SAMHSA agrees with a State commenter who stated that ``[T]he States can
assure that steps can and will be taken to assure protection of these
rights without granting religious objectors more extensive rights than
those of the general population of beneficiaries''. * * * [Existing
protections are sufficient.]''

Fiscal Accountability. (Sec. 54.10 and 54a.10)

The fiscal accountability section of the regulation provided that
religious organizations receiving SAMHSA funding would be held to the
same fiscal accountability requirements as other organizations,
including generally accepted auditing and accounting principles. Faith-
based organizations would also be required to keep any federal funds in
a separate account from non-federal funds. Only the segregated Federal
funds are subject to audit by the government under the SAMHSA program.
Comment: The Department received 13 comments on the issue of fiscal
accountability. All of the comments received on this section supported
segregation of funds and strict adherence to Federal audit and cost
principles and requirements. There was some concern about the ability
of faith-based organizations to maintain separate accounts.

[[Page 56440]]

Response: The final rule provides that religious organizations
receiving SAMHSA discretionary funds will be subject to audit, just
like any other non-governmental organization receiving such funds. The
faith-based organization is to use the funds in accordance with the
grant and all applicable laws and regulations. For discretionary
grants, as provided in 45 CFR 74.26 and 92.26, SAMHSA grantees are
responsible for obtaining audits by an independent auditor following
generally accepted government auditing standards, in accordance with
applicable OMB circulars. When the State is the grantee, the State is
responsible for the appropriate use of its SAMHSA funds, so the
organization (as the subgrantee) needs to be able to show to the State
and the auditor that it used the funds for the purpose intended by the
State. This must also be in accordance with the Single Audit Act and
OMB Circular A-133.
Moreover, HHS is authorized to conduct any additional audits or
reviews that are warranted, irrespective of the amount of Federal funds
expended by the grantee annually, in order to ensure compliance with
program requirements including the restriction against funding of
inherently religious activities. HHS may determine that such audits or
reviews are warranted based upon any information received by the agency
that raises an issue concerning the propriety of expenditures.
Comment: Several commenters were concerned about religious
organizations operating as intermediary organizations. One commenter
notes that the ``proposed rule creates the risk that comparable
religious intermediaries will not act in a religiously neutral
manner.'' Another commenter believed using such intermediaries has the
effect of advancing religion and noted that the delegation of
governmental authority to a religious organization violates the
Establishment Clause. Another commenter believed it would raise
questions about the accountability of tax dollars and that it promotes
religion.
Response: We do not agree that the use of a religious organization
as an intermediate organization is unconstitutional. Our review did not
disclose any precedents, legal or otherwise, that would prevent a
governmental unit from selecting a religious organization as an
intermediate organization. The purpose of the regulations at sections
54.12 and 54a.12 is not to delegate authority to organizations to carry
out tasks that are traditionally reserved for a governmental agency. It
simply recognizes what has occurred in States already--that is, States
have used block grant funds to contract with intermediaries to manage
programs and make sub-awards to other organizations as part of their
substance abuse service systems. Although such intermediary
organizations may be utilized, we emphasize that the governmental unit
that procures such services is accountable for Federal funds and must
assure that the intermediary abides by all statutory and regulatory
requirements, including these regulations, and must assure that the
intermediary acts in a religiously neutral manner and that direct funds
are not expended for inherently religious activities.

Educational Requirements for Personnel in Drug Treatment Programs (Sec.
54.13 and 54a.13)

This provision, restated directly from SAMHSA's Charitable Choice
laws, seeks to redress ``unduly rigid or uniform educational
qualification for counselors and other personnel in drug treatment
programs.'' States establish such licensure and certification
requirements.
Comment: Of the eighteen comments received on this section, sixteen
stressed that faith-based organizations should have to meet the same
licensing and certification requirements as other providers. One
commenter noted that language should be clarified that the goal of this
section is to ensure non-discrimination against training programs
offered by religious organizations, rather than to loosen State
requirements designed to ensure quality of care to clients.
Response: The final rule restates the statutory requirement of 42
U.S.C. 290kk-3, which provides that, in determining whether personnel
of a program participant that has a record of successful drug treatment
for the preceding three years have satisfied State or local
requirements for education and training, a State or local government
shall not discriminate against education and training provided to such
personnel by a religious organization, so long as such education and
training is comparable to the coursework or training provided by
nonreligious organizations or is substantially equivalent to education
and training that the State or local government would otherwise credit
for purposes of determining whether the relevant requirements have been
satisfied (emphasis added).
In keeping with its approach to provide States with wide
flexibility in implementing the alternative service provisions, the
Department is enabling the States to determine whether the education
and training provided by a religious organization is ``substantially
equivalent'' to that provided by nonreligious organizations, and is in
accordance with applicable State certification and licensure
requirements. States are encouraged to provide simplified information
about their State's certification and licensure requirements to
religious organizations, highlighting, if appropriate, different
requirements for different stages of treatment (e.g., outreach versus
medically-indicated treatment).
Comment: Two commenters felt that faith-based organizations should
be provided more flexibility, with one commenting that ``[S]tates
should reconsider their existing certification requirements to ensure
that their existing certification requirements do not unnecessarily
discourage alternative treatment strategies and thus the involvement of
new providers.'' The commenter also suggested that ``SAMHSA provide
guidance on the range of drug treatments that are effective and on the
range of educational paths that prepare people to offer those different
treatment modalities.''
Response: The Department urges the States to work with their faith-
based providers to ensure that these providers have clear information
on licensure and certification requirements, and to ensure that new
providers are encouraged and supported. With regard to guidance from
the Department on types of drug treatment, we refer interested parties
to the full range of SAMHSA's Treatment Improvement Protocols (TIPS),
available at www.samhsa.gov.
Comment: Several commenters noted that substance abuse treatment is
a medical treatment, not a social service, and that ``prevailing models
treat addiction as a biopsychosocial disorder,'' not a social problem.
Response: The Department agrees that certain aspects of substance
abuse treatment are medical in nature. State licensure and
certification systems recognize this characterization as well. SAMHSA
encourages States to work with their provider community to clarify
different treatment alternatives.

Unfunded Mandates Reform Act of 1995

Section 202 of the Unfunded Mandates Reform Act of 1995 requires
that a covered agency prepare a budgetary impact statement before
promulgating a rule that includes any Federal mandate that may result
in the expenditure by State, local, and Tribal governments, in the
aggregate, or by the

[[Page 56441]]

private sector, of $100 million or more in any one year.
Comment: Numerous States, providers, faith-based organizations and
public interest groups stated that the proposed rule constitutes an
unfunded mandate by SAMHSA and asked that an unfunded mandate analysis
be completed. In the words of one commenter, ``there is a broad
delegation of responsibility to States for providing secular
alternatives without providing corresponding resources to carry it out.
SAMHSA should provide `much more specific regulation' and resources
necessary to carry this out.''
Response: The Department has determined that this rule would not
impose a mandate that will result in the expenditure by State, local,
and Tribal governments, in the aggregate, or by the private sector, of
more than $100 million in any one year. As provided in sections 54.8
and 54a.8, States and other grantees can use grant funds to implement
these provisions, and these regulations impact only existing Federal-
funding streams, unless the State or local governments commingle other
funds with Federal funds.

Assurances and State Oversight of the Charitable Choice Requirements

The NPRM proposed that States, as a standard part of their
applications for funding under each program, certify that they will
comply with all of the requirements of the SAMHSA Charitable Choice
provisions and submit to the Secretary a summary each year of the steps
it has taken to implement this regulation.
Comments: Eight commenters felt that the stated assurance for
tracking implementation and accountability was not strong enough. One
commenter recommended spot-checks and reporting requirements to make
sure faith-based providers and governments were complying with the
final rule.
Response: The Department believes that signed assurances, plus
existing compliance and auditing standards, provide the needed
oversight and guarantee that the States, localities and religious
organizations are implementing the regulation properly and that all
beneficiaries' rights are being upheld as required.

Complaint System

Comment: One commenter pointed out that no complaint, investigation
and resolution process was discussed in the NPRM.
Response: For the PATH formula grant and SAPT block grant, and for
discretionary programs, program participants and beneficiaries can
contact the Administrator, SAMHSA. Complaints and comments will be
addressed on a case-by-case basis as needed.

Indirect and Direct Funding

In the Charitable Choice context, the term ``direct'' funding is
used to describe funds that are provided ``directly'' to a
participating organization `` i.e., based on the government's own
decision and without any intervening steps--by a governmental entity or
an intermediate organization with the same duties under this part as a
governmental entity, as opposed to funds that such an organization
receives as the result of the genuine and independent private choice of
a beneficiary through a voucher, certificate, coupon or other similar
mechanism.
Comment: One commenter wrote that the indirect funding definition
opens the door to government-funded worship and proselytization. This
commenter asked us to require that all government-funded services be
free of religious content. In addition, the commenter thinks that
``free and independent choice'' is a myth which incorrectly assumes
that people in need will be able to shop for services. Social services
are not available on a scale that makes ``choice'' real. This commenter
believes people use the most geographically accessible providers.
Response. With respect to indirect funding, we find no basis to
require that all government-funded services be free of religious
content. Furthermore, we disagree that funding services indirectly
opens the door to government-funded worship and proselytization. The
Supreme Court has consistently held that governments may fund programs
that place the benefit in the hands of individuals, who in turn have
the freedom to choose the provider to which they take their benefit and
``spend'' it, whether that institution is public or private, secular or
religious. Therefore, any consequential aid to religion having its
origin in such a program is the result of the beneficiary's own choice.
In other words, indirect funding means that individual private choice,
rather than the government, determines which social service provider
eventually receives the funds. As a general matter, this removes
involvement on the part of the government in worship and
proselytization.
Comment: Several other commenters were concerned that indirect
funding mechanisms would not be subject to the requirements of this
rule, giving way to government funding of religious activities. One
commenter asked for clarification whether a faith-based organization
receiving indirect funding from the government could require active
participation by a beneficiary in religious activities. Some commenters
seemed to be confused as to whether the rules applied to indirect
funding.
Response: It is the Department's position that these regulations
apply only to direct funding and not to indirect funding pursuant to
vouchers, certificates or similar funding mechanisms. To the extent
that religious organizations receive Federal funding indirectly through
vouchers, certificates or similar funding mechanisms, the Charitable
Choice regulations do not apply.
Comment: One faith-based commenter recommended that beneficiaries
be given the opportunity to choose to use indirect funding for the
religious services provided to them.
Response: Making this a requirement is beyond the authority of the
Charitable Choice statutes.

Vouchers

President Bush announced his ``Access to Recovery'' program in his
State of the Union Address in January 2003. This initiative will
provided increased access to services for the Nation's substance
abusers while also expanding the range of treatment providers
available. In short, the voucher program will enhance consumer choice
and allow recovery to be pursued in an individualized manner.
Comment: We received approximately 15 comments about the voucher
program being developed by the Department. Some commenters recommended
that requirements from the Zelman case be included in the Charitable
Choice regulations. Other commenters discussed their opposition to the
government use of vouchers while others felt that vouchers would
violate the Establishment Clause. Also, commenters questioned whether
the voucher program allowed for a true ``genuine and independent
choice.''
Response: Neither the NPRM, nor the final rule, create a voucher
program. Since these regulations in and of themselves do not create a
voucher program, we do not believe these comments are relevant to the
regulations at issue. As to the specifics of the voucher program, such
details are beyond the scope of this regulation. Furthermore, the
Department disagrees with the comments and believes that voucher
programs are a viable mechanism for funding services and are
constitutionally permissible.

[[Page 56442]]

We do not agree with the contentions that vouchers for religiously
based services would violate the Establishment Clause, force
individuals to attend ``pervasively sectarian'' institutions, or lack
secular purpose, for the following reason: the Supreme Court has upheld
the constitutionality of mechanisms of indirect aid, such as vouchers.
Therefore, we think that it is reasonable to conclude that neutral,
indirect aid to a religious organization does not violate the
Establishment Clause.

Applicability of Charitable Choice to the PATH Program

SAMHSA's program, Projects in Transition from Homelessness (PATH),
funds outreach and some substance abuse services for homeless persons
with mental illness. The Department has determined that the Charitable
Choice provisions apply to the programs under PATH that provide
substance abuse services.
Comment: Several commenters were concerned that the State PATH
offices have ``no administrative capacity to monitor such reporting of
client specific information.'' They also commented that, because the
reporting burden ``doesn't seem to quite fit with the PATH program,
implementing the Charitable Choice regulation for PATH will require
development of an entirely new planning and accounting system.''
Response: The Department appreciates these concerns, but is
confident that, with sufficient flexibility, States will be able to
develop client referral and monitoring systems that will enable PATH
grant officials to comply with the regulation.

Executive Order 12866

Executive Order 12866 directs agencies to assess all costs and
benefits of available regulatory alternatives and, when rulemaking is
necessary, to select regulatory approaches that provide the greatest
net benefits (including potential economic, environmental, public
health, safety distributive and equity effects). We have determined
that the rule is a ``significant regulatory action'' under Section 3(f)
of the Executive Order, and the Office of Management and Budget has
therefore reviewed it under that Order.

Paperwork Reduction Act of 1995

This final rule contains information collections which are subject
to review by the Office of Management and Budget (OMB) under the
Paperwork Reduction Act of 1995 (the PRA) (44 U.S.C. 3507(d)). The
title, description and respondent description of the information
collections are shown in the following paragraphs with an estimate of
the annual reporting and record keeping burden. Included in the
estimate is the time for reviewing instructions, searching existing
data sources, gathering and maintaining the data needed, and completing
and reviewing the collection of information.
Title: Regulations to Implement SAMHSA's Charitable Choice
Statutory Provisions--42 CFR Parts 54 and 54a.
Description: Section 1955 of the Public Health Service Act (42
U.S.C. 300x-65), as amended by the Children's Health Act of 2000 (Pub.
L. 106-310), and sections 581-584 of the Public Health Service Act (42
U.S.C. 290kk, et seq.), as added by the Consolidated Appropriations Act
(Pub. L. 106-554), set forth various provisions which aim to ensure
that religious organizations are able to compete on an equal footing
for Federal funds to provide substance abuse services. These provisions
allow religious organizations to offer substance abuse services to
individuals without impairing the religious character of the
organizations or the religious freedom of the individuals who receive
the services. The provisions apply to the SAPT Block Grant, PATH
formula grant program, and to certain SAMHSA discretionary grant
programs (programs that pay for substance abuse treatment and
prevention services, not for certain infrastructure and technical
assistance activities). Every effort has been made to assure that the
reporting, record keeping and disclosure requirements of the
regulations allow maximum flexibility in implementation and impose
minimum burden.
Description of Respondents: Not-for-profit institutions; State,
Local or Tribal Government.
Response burden estimate: This rule includes requirements for
disclosure by program participants to program beneficiaries of their
rights to receipt of services from an alternative service provider, for
notification by program participants to the applicable level of
government of referrals made to alternative service providers, and
requirements for reporting of activities to comply with these
regulations. The rule also requires that a program participant under
the SAPT Block Grant and the PATH programs that believes it would be
substantially burdened by application of the requirements of 42 U.S.C.
300x-57(a)(2) or 42 U.S.C. 290cc-33(a)(2) must sign a certification to
that effect and must maintain documentation to support the
certification.
Comment: SAMHSA received three comments related to response burden
estimates. One comment noted that States would need to enhance their
current data systems to track an individual's choice of providers or
referral between providers.
Response: The regulations do not require that States track
individuals. They require only that a religious organization that is a
program participant refer a beneficiary who objects to the religious
character of the organization to an alternative provider and that the
program participant notify the State of the referral. Each State or
local government may determine its own reporting procedures.
Comment: One State commented that it believes the annual burden
estimates are not supported with reliable data.
Response: At the present time, there is no known source of
information to quantify precisely the numbers or proportions of program
beneficiaries who will request referral to alternative providers. The
Department believes that less than one percent, the proportion
suggested by the commenter, of program beneficiaries will make such
requests.
Comment: A third State commented that the burden of implementation
will depend on the number of objections from beneficiaries.
Response: The Department agrees with the State that this is true.
However, the Department believes that there will be a minimal number of
program beneficiaries who request referral to alternative providers and
that the flexibility provided with regard to implementation will
minimize information collection burden. Experience in the first several
years of implementing the rule will provide an empirical basis for any
adjustments of burden estimates associated with the information
collection requirements.

[[Page 56443]]

Annual Burden Estimates
----------------------------------------------------------------------------------------------------------------
Number of Responses per Hours per
42 CFR citation and purpose respondents respondent response Total hours
----------------------------------------------------------------------------------------------------------------
Part 54--States Receiving SAPT Block Grants and/or Projects for Assistance in Transition from Homelessness
Grants
----------------------------------------------------------------------------------------------------------------
Reporting
----------------------------------------------------------------------------------------------------------------
54.8(c)(4) Program participant notification to 40 4 0.33 53
responsible unit of government regarding
referrals to alternative service providers.....
54.8(e) Annual report by PATH grantees on 56 1 2.00 112
activities undertaken to comply with 42 CFR
Part 54........................................
-------------------------------------------------
Disclosure
----------------------------------------------------------------------------------------------------------------
54.8(b) Program participant notice to program
beneficiaries of rights to referral to an
alternative service provider...................
SAPT BG..................................... 1,000 275 .05 13,750
PATH........................................ 100 170 .05 850
-------------------------------------------------
Recordkeeping
----------------------------------------------------------------------------------------------------------------
54.6(b) Documentation must be maintained to 50 1 1.00 50
demonstrate significant burden for program
participants under 42 U.S.C. 300x-57 or 42
U.S.C. 290cc-3(a)(2)...........................
-----------------
Part 54--Subtotal............................... 1,156 .............. .............. 14,815
-------------------------------------------------
Part 54a--States, local governments and religious organizations receiving funding under Title V of the PHS Act
for substance abuse prevention and treatment services
----------------------------------------------------------------------------------------------------------------
Reporting
----------------------------------------------------------------------------------------------------------------
54a.8(c)(1)(iv) Program participant notification 25 4 .083 8
to State or local government of a referral to
an alternative provider........................
54a(8)(d) Program participant notification to 20 2 .25 10
SAMHSA of referrals............................
-------------------------------------------------
Disclosure
----------------------------------------------------------------------------------------------------------------
54a.8(b) Program participant notice to program 100 275 .05 1,375
beneficiaries of rights to referral to an
alternative service provider...................
Part 54a--Subtotal.............................. 100 .............. .............. 1,393
-----------------
Total....................................... 1,256 .............. .............. 16,208
----------------------------------------------------------------------------------------------------------------

In addition, the regulations for the SAPT Block Grant (45 CFR part
96) will be amended to include at 45 CFR 92.122(f)(5) a requirement to
include as part of the annual report a description of the activities
the State has undertaken to comply with 42 CFR part 54. This reporting
burden is estimated as follows:

----------------------------------------------------------------------------------------------------------------
Number of Responses per Hours per
45 CFR citation and purpose respondents respondent response Total hours
----------------------------------------------------------------------------------------------------------------
96.122(f)(5) Annual report of activities the 60 1 2 120
State undertook to comply with 42 CFR Part 54..
----------------------------------------------------------------------------------------------------------------

The information collection provisions in this final rule have been
approved under OMB control number 0930-0242. This approval expires 09/
30/2006. An agency may not conduct or sponsor, and a person is not
required to respond to, a collection of information unless it displays
a currently valid OMB control number.

Regulatory Flexibility Analysis

The Regulatory Flexibility Act (5 U.S.C. 605(b)) requires the
Federal government to anticipate and reduce the impact of rules and
paperwork requirements on small businesses and other small entities.
Small entities are defined in the Act to include small businesses,
small non-profit organizations, and small governmental entities. This
rule will affect primarily the 50 States, the District of Columbia, and
certain Territories. It also does have an impact on potential grantees,
some of which are small entities. However, the number of small entities
affected and the size of the impact does not require a regulatory
flexibility analysis under the requirements of the Act. Therefore, we
certify that this rule will not have a significant impact on small
entities.
Comment: One commenter noted that the ``proposed rules will impact
a large number of nonprofit organizations, both faith-based and
secular, that wish to partner with government in providing SAMHSA
services'' and called for SAMHSA to conduct a regulatory flexibility
analysis.
Response: While the commenter is accurate in his assertion that
nonprofit organizations, some of which would be considered small
entities under the Regulatory Flexibility Act definition, will be
affected by this rule, the economic impact of this particular rule on
small entities will not be significant.

[[Page 56444]]

The rule simply allows faith-based organizations to compete for a wider
range of government funding on an equal footing as other qualified
applicants. The economic impact stems from the individual funding
opportunities, which are not included in this rule. We have certified
that this rule will not have a significant impact on small entities,
and therefore a regulatory flexibility analysis is not required.

Executive Order 13132

Executive Order 13132, Federalism, requires that Federal agencies
consult with State and local government officials in the development of
regulatory policies with Federalism implications. In the NPRM, we
specifically solicited comments from State and local government
officials.
Comment: Two commenters specifically mentioned that we should have
consulted with State and local officials before the issuance of a final
rule.
Response: We believe that our solicitation of comments from the
public in the NPRM satisfied the consultation requirement of Executive
Order 13132. SAMHSA provided a comment period, during which time the
agency heard from many State agencies and local providers, and the
rules have been drafted in a manner that provides States flexibility.

Dated: September 22, 2003.
Tommy G. Thompson,
Secretary of Health and Human Services.

0
For the reasons set forth in the preamble, 42 CFR chapter I and 45 CFR
Subtitle A are amended as follows:

42 CFR CHAPTER I

0
1. Part 54 is added to read as follows:

PART 54--CHARITABLE CHOICE REGULATIONS APPLICABLE TO STATES
RECEIVING SUBSTANCE ABUSE PREVENTION AND TREATMENT BLOCK GRANTS
AND/OR PROJECTS FOR ASSISTANCE IN TRANSITION FROM HOMELESSNESS
GRANTS

Sec.
54.1 Scope.
54.2 Definitions.
54.3 Nondiscrimination against religious organizations.
54.4 Religious activities.
54.5 Religious character and independence.
54.6 Employment practices.
54.7 Nondiscrimination requirement.
54.8 Right to services from an alternative provider.
54.9 Assurances and State oversight of the Charitable Choice
requirements.
54.10 Fiscal accountability.
54.11 Effect on State and local funds.
54.12 Treatment of intermediate organizations.
54.13 Educational requirements for personnel in drug treatment
programs.

Authority: 42 U.S.C. 300x-65, et seq., 42 U.S.C. 290kk, et seq.,
42 U.S.C. 300x-21, et seq., 42 U.S.C. 290cc-21, et seq., and 42
U.S.C. 2000bb, et seq.

Sec. 54.1 Scope.

These provisions apply only to funds provided directly to pay for
substance abuse prevention and treatment services under 42 U.S.C. 300x-
21 et seq., and 42 U.S.C. 290cc-21 to 290cc-35. This part does not
apply to direct funding under any such authorities for activities that
do not involve the provision of substance abuse services, such as for
infrastructure activities authorized under Section 1971 of the PHS Act,
42 U.S.C. 300y, and for technical assistance activities. This part
implements the SAMHSA Charitable Choice provisions, 42 U.S.C. 300x-65
and 42 U.S.C. 290kk, et seq.

Sec. 54.2 Definitions.

(a) Applicable program means the programs authorized under:
(1) The Substance Abuse Prevention and Treatment (SAPT) Block
Grant, 42 U.S.C. 300x to 300x-66, and
(2) The Projects for Assistance in Transition from Homelessness
(PATH) Formula Grants, 42 U.S.C. 290cc-21 to 290cc-35 insofar as they
fund substance abuse prevention and/or treatment services.
(b) Religious organization means a nonprofit religious
organization.
(c) Program beneficiary means an individual who receives substance
abuse services under a program funded in whole or in part by applicable
programs.
(d) Program participant means a public or private entity that has
received financial assistance, under an applicable program.
(e) SAMHSA means the U.S. Substance Abuse and Mental Health
Services Administration.
(f) SAMHSA Charitable Choice provisions means the provisions of 42
U.S.C. 300x-65 and 42 U.S.C. 290kk, et seq.
(g) Direct funding or Funds provided directly means funding that is
provided to an organization directly by a governmental entity or
intermediate organization that has the same duties under this part as a
governmental entity, as opposed to funding that an organization
receives as the result of the genuine and independent private choice of
a beneficiary through a voucher, certificate, coupon, or other similar
mechanism.

Sec. 54.3 Nondiscrimination against religious organizations.

(a) Religious organizations are eligible, on the same basis as any
other organization, to participate in applicable programs, as long as
their services are provided consistent with the Establishment Clause
and the Free Exercise Clause of the First Amendment to the United
States Constitution. Except as provided herein or in the SAMHSA
Charitable Choice provisions, nothing in these regulations shall
restrict the ability of the Federal government, or a State or local
government, from applying to religious organizations the same
eligibility conditions in applicable programs as are applied to any
other nonprofit private organization.
(b) Neither the Federal government nor a State or local government
receiving funds under these programs shall discriminate against an
organization that is, or applies to be, a program participant on the
basis of religion or the organization's religious character or
affiliation.

Sec. 54.4 Religious activities.

No funds provided directly from SAMHSA or the relevant State or
local government to organizations participating in applicable programs
may be expended for inherently religious activities, such as worship,
religious instruction, or proselytization. If an organization conducts
such activities, it must offer them separately, in time or location,
from the programs or services for which it receives funds directly from
SAMHSA or the relevant State or local government under any applicable
program, and participation must be voluntary for the program
beneficiaries.

Sec. 54.5 Religious character and independence.

A religious organization that participates in an applicable program
will retain its independence from Federal, State, and local governments
and may continue to carry out its mission, including the definition,
practice and expression of its religious beliefs. The organization may
not expend funds that it receives directly from SAMHSA or the relevant
State or local government to support any inherently religious
activities, such as worship, religious instruction, or proselytization.
Among other things, faith-based organizations may use space in their
facilities to provide services supported by applicable programs,
without removing religious art, icons, scriptures, or other symbols. In
addition, a SAMHSA-funded religious

[[Page 56445]]

organization retains the authority over its internal governance, and it
may retain religious terms in its organization's name, select its board
members on a religious basis, and include religious references in its
organization's mission statements and other governing documents.

Sec. 54.6 Employment practices.

(a) The participation of a religious organization in, or its
receipt of funds from, an applicable program does not affect that
organization's exemption provided under 42 U.S.C. 2000e-1 regarding
employment practices.
(b) To the extent that 42 U.S.C. 300x-57(a)(2) or 42 U.S.C. 290cc-
33(a)(2) precludes a program participant from employing individuals of
a particular religion to perform work connected with the carrying on of
its activities, those provisions do not apply if such program
participant is a religious corporation, association, educational
institution, or society and can demonstrate that its religious exercise
would be substantially burdened by application of these religious
nondiscrimination requirements to its employment practices in the
program or activity at issue. In order to make this demonstration, the
program participant must certify: that it sincerely believes that
employing individuals of a particular religion is important to the
definition and maintenance of its religious identity, autonomy, and/or
communal religious exercise; that it makes employment decisions on a
religious basis in analogous programs; that the grant would materially
affect its ability to provide the type of services in question; and
that providing the services in question is expressive of its values or
mission. The organization must maintain documentation to support these
determinations and must make such documentation available to SAMHSA
upon request.
(c) Nothing in this section shall be construed to modify or affect
any State law or regulation that relates to discrimination in
employment.
(d) The phrases ``with respect to the employment,'' ``individuals
of a particular religion,'' and ``religious corporation, association,
educational institution, or society'' shall have the same meaning as
those terms have under section 702 of the Civil Rights Act of 1964, 42
U.S.C. 2000e-1(a).

Sec. 54.7 Nondiscrimination requirement.

A religious organization that is a program participant shall not,
in providing program services or engaging in outreach activities under
applicable programs, discriminate against a program beneficiary or
prospective program beneficiary on the basis of religion, a religious
belief, a refusal to hold a religious belief, or a refusal to actively
participate in a religious practice.

Sec. 54.8 Right to services from an alternative provider.

(a) General requirements. If an otherwise eligible program
beneficiary or prospective program beneficiary objects to the religious
character of a program participant, within a reasonable period of time
after the date of such objection, such program beneficiary shall have
rights to notice, referral, and alternative services, as outlined in
paragraphs (b) through (d) of this section.
(b) Notice. Program participants that refer an individual to
alternative service providers, and the State government that
administers the applicable programs, shall ensure that notice of the
individual's right to services from an alternative provider is provided
to all program beneficiaries or prospective beneficiaries. The notice
must clearly articulate the program beneficiary's right to a referral
and to services that reasonably meet the requirements of timeliness,
capacity, accessibility, and equivalency as discussed in this section.
A model notice is set out in appendix A to part 54a.
(c) Referral to an alternative provider. If a program beneficiary
or prospective program beneficiary objects to the religious character
of a program participant that is a religious organization, that
participating religious organization shall, within a reasonable time
after the date of such objection, refer such individual to an
alternative provider. The State shall have a system in place to ensure
that referrals are made to an alternative provider. That system shall
ensure that the following occurs:
(1) The religious organization that is a program participant shall,
within a reasonable time after the date of such objection, refer the
beneficiary to an alternative provider;
(2) In making such referral, the program participant shall consider
any list that the State or local government makes available to entities
in the geographic area that provide program services, which may include
utilizing any treatment locator system developed by SAMHSA;
(3) All referrals shall be made in a manner consistent with all
applicable confidentiality laws, including, but not limited to, 42 CFR
Part 2 (``Confidentiality of Alcohol and Drug Abuse Patient Records'');
(4) Upon referring a program beneficiary to an alternative
provider, the program participant shall notify the State or responsible
unit of government of such referral; and
(5) The program participant shall ensure that the program
beneficiary makes contact with the alternative provider to which he or
she is referred.
(d) Provision and funding of alternative services. If an otherwise
eligible applicant or recipient objects to the religious character of a
SAMHSA-funded service provider, the recipient is entitled to receive
services from an alternative provider. In such cases, the State or
local agency must provide the individual with alternative services
within a reasonable period of time, as defined by the State agency.
That alternative provider must be reasonably accessible and have the
capacity to provide comparable services to the individual. Such
services shall have a value that is not less than the value of the
services that the individual would have received from the program
participant to which the individual had such objection, as defined by
the State agency. The alternative provider need not be a secular
organization. It must simply be a provider to which the recipient has
no religious objection. States may define and apply the terms
``reasonably accessible,'' ``a reasonable period of time,''
``comparable,'' ``capacity,'' and ``value that is not less than.'' The
appropriate State or local governments that administer SAMHSA-funded
programs shall ensure that notice of their right to alternative
services is provided to applicants or recipients. The notice must
clearly articulate the recipient's right to a referral and to services
that reasonably meet the timeliness, capacity, accessibility, and
equivalency requirements discussed above.
(e) PATH annual report. As part of the annual report to SAMHSA,
PATH grantees shall include a description of the activities the grantee
has taken to comply with 42 CFR part 54.

Sec. 54.9 Assurances and State oversight of the Charitable Choice
requirements.

In order to ensure that States receiving grant funding under the
SAPT block grant and PATH formula grant programs comply with the SAMHSA
Charitable Choice provisions and provide oversight of religious
organizations that provide substance abuse services under such
programs, States are required as part of their applications for funding
to certify that they will comply with all of the requirements of such
provisions and the implementing regulations under this

[[Page 56446]]

part, and that they will provide such oversight of religious
organizations.

Sec. 54.10 Fiscal accountability.

(a) Religious organizations that receive applicable program funds
for substance abuse services are subject to the same regulations as
other nongovernmental organizations to account, in accordance with
generally accepted auditing and accounting principles, for the use of
such funds.
(b) Religious organizations shall segregate Federal funds they
receive under an applicable program into a separate account from non-
Federal funds. Only the Federal funds shall be subject to audit by
government under the SAMHSA program.

Sec. 54.11 Effects on State and local funds.

If a State or local government contributes its own funds to
supplement activities carried out under the applicable programs, the
State or local government has the option to separate out the Federal
funds or commingle them. If the funds are commingled, the provisions of
this part shall apply to all of the commingled funds in the same
manner, and to the same extent, as the provisions apply to the Federal
funds.

Sec. 54.12 Treatment of intermediate organizations.

If a nongovernmental organization (referred to here as an
``intermediate organization''), acting under a contract or other
agreement with the Federal Government or a State or local government,
is given the authority under the contract or agreement to select
nongovernmental organizations to provide services under any applicable
program, the intermediate organization shall have the same duties under
this part as the government. The intermediate organization retains all
other rights of a nongovernmental organization under this part and the
SAMHSA Charitable Choice provisions.

Sec. 54.13 Educational requirements for personnel in drug treatment
programs.

In determining whether personnel of a program participant that has
a record of successful drug treatment for the preceding three years
have satisfied State or local requirements for education and training,
a State or local government shall not discriminate against education
and training provided to such personnel by a religious organization, so
long as such education and training is comparable to that provided by
nonreligious organizations, or is comparable to education and training
that the State or local government would otherwise credit for purposes
of determining whether the relevant requirements have been satisfied.

0
2. Add a new Part 54a to read as follows:

PART 54a--CHARITABLE CHOICE REGULATIONS APPLICABLE TO STATES, LOCAL
GOVERNMENTS AND RELIGIOUS ORGANIZATIONS RECEIVING DISCRETIONARY
FUNDING UNDER TITLE V OF THE PUBLIC HEALTH SERVICE ACT, 42 U.S.C.
290aa, ET SEQ., FOR SUBSTANCE ABUSE PREVENTION AND TREATMENT
SERVICES

Sec.
54a.1 Scope.
54a.2 Definitions.
54a.3 Nondiscrimination against religious organizations.
54a.4 Religious activities.
54a.5 Religious character and independence.
54a.6 Employment practices.
54a.7 Nondiscrimination requirement.
54a.8 Right to services from an alternative provider.
54a.9 Oversight of the Charitable Choice requirements.
54a.10 Fiscal accountability.
54a.11 Effect on State and local funds.
54a.12 Treatment of intermediate organizations.
54a.13 Educational requirements for personnel in drug treatment
programs.
54a.14 Determination of nonprofit status.
Appendix to Part 54a--Model notice to individuals receiving
substance abuse services.

Authority: 42 U.S.C. 300x-65, and 42 U.S.C. 290kk, et seq., 42
U.S.C. 290aa, et seq.

Sec. 54a.1 Scope.

These provisions apply only to funds provided directly to pay for
substance abuse prevention and treatment services under Title V of the
Public Health Service Act, 42 U.S.C. 290aa, et seq., which are
administered by the Substance Abuse and Mental Health Services
Administration. This part does not apply to direct funding under any
such authorities for only mental health services or for certain
infrastructure and technical assistance activities, such as cooperative
agreements for technical assistance centers, that do not provide
substance abuse services to clients. This part implements the
provisions of 42 U.S.C. 300x-65 and 42 U.S.C. 290kk, et seq.

Sec. 54a.2 Definitions.

(a) Applicable program means the programs authorized under Title V
of the PHS Act, 42 U.S.C. 290aa, et seq., for the provision of
substance abuse prevention and or treatment services.
(b) Religious organization means a nonprofit religious
organization.
(c) Program beneficiary means an individual who receives substance
abuse services under a program funded in whole or in part by applicable
programs.
(d) Program participant means a public or private entity that has
received financial assistance under an applicable program.
(e) SAMHSA means the Substance Abuse and Mental Health Services
Administration.
(f) SAMHSA Charitable Choice provisions means the provisions of 42
U.S.C. 300x-65 and 42 U.S.C. 290kk, et seq.
(g) Direct funding or Funds provided directly means funding that is
provided to an organization directly by a governmental entity or
intermediate organization that has the same duties under this part as a
governmental entity, as opposed to funding that an organization
receives as the result of the genuine and independent private choice of
a beneficiary through a voucher, certificate, coupon, or other similar
mechanism.

Sec. 54a.3 Nondiscrimination against religious organizations.

(a) Religious organizations are eligible, on the same basis as any
other organization, to participate in applicable programs as long as
their services are provided consistent with the Establishment Clause
and the Free Exercise Clause of the First Amendment to the United
States Constitution. Except as provided herein or in the SAMHSA
Charitable Choice provisions, nothing in these regulations shall
restrict the ability of the Federal government, or a State or local
government, from applying to religious organizations the same
eligibility conditions in applicable programs as are applied to any
other nonprofit private organization.
(b) Neither the Federal government nor a State or local government
receiving funds under these programs shall discriminate against an
organization that is, or applies to be, a program participant on the
basis of the organization's religious character or affiliation.

Sec. 54a.4 Religious activities.

[[Page 56447]]

or services for which it receives funds directly from SAMHSA or the
relevant State or local government under any applicable program, and
participation must be voluntary for the program beneficiaries.

Sec. 54a.5 Religious character and independence.

Sec. 54a.6 Employment practices.

(a) The participation of a religious organization in or its receipt
of funds from an applicable program does not affect that organization's
exemption provided under 42 U.S.C. 2000e-1 regarding employment
practices.
(b) Nothing in this section shall be construed to modify or affect
any State law or regulation that relates to discrimination in
employment.

Sec. 54a.7 Nondiscrimination requirement.

A religious organization that is a program participant shall not,
in providing program services or engaging in outreach activities under
applicable programs, discriminate against a program beneficiary or
prospective program on the basis of religion, a religious belief, a
refusal to hold a religious belief, or a refusal to actively
participate in a religious practice.

Sec. 54a.8 Right to services from an alternative provider.

(a) General requirements. If an otherwise eligible program
beneficiary or prospective program beneficiary objects to the religious
character of a program participant, within a reasonable period of time
after the date of such objection, such program beneficiary shall have
rights to notice, referral, and alternative services, as outlined in
paragraphs (b) through (d) of this section. With respect to SAMHSA
discretionary programs, for purposes of determining what is the
appropriate Federal, State, or local government, the following
principle shall apply: When SAMHSA provides funding directly to another
unit of government, such as a State or local government, that unit of
government is responsible for providing the alternative services. When
SAMHSA provides discretionary grant funding directly to a
nongovernmental organization, SAMHSA is the responsible unit of
government.
(b) Notice. Program participants that refer an individual to
alternative providers, and the appropriate Federal, State, or local
governments that administer the applicable programs, shall ensure that
notice of the individual's rights to services from an alternative
provider is provided to all program beneficiaries or prospective
beneficiaries. The notice must clearly articulate the program
beneficiary's right to a referral and to services that reasonably meet
the requirements of timeliness, capacity, accessibility, and
equivalency as discussed in this section. A model notice is set out in
appendix A to this part.
(c) Referral to services from an alternative provider. If a program
beneficiary or a prospective program beneficiary objects to the
religious character of a program participant that is a religious
organization, that participating religious organization shall, within a
reasonable time after the date of such objection, refer such individual
to an alternative provider.
(1) When the State or local government is the responsible unit of
government, the State shall have a system in place to ensure that such
referrals are made. That system shall ensure that the following occurs:
(i) The religious organization that is a program participant shall,
within a reasonable time after the date of such objection, refer the
beneficiary to an alternative provider;
(ii) In making such referral, the religious organization shall
consider any list that the State or local government makes available to
entities in the geographic area that provide program services, which
may include utilizing any treatment locator system developed by SAMHSA;
(iii) All referrals are to be made in a manner consistent with all
applicable confidentiality laws, including, but not limited to, 42 CFR
part 2 (``Confidentiality of Alcohol and Drug Abuse Patient Records'');
(iv) Upon referring a program beneficiary to an alternative
provider, the religious organization shall notify the responsible unit
of government of such referral; and
(v) The religious organization shall ensure that the program
beneficiary makes contact with the alternative provider to which he or
she is referred.
(2) When SAMHSA is the responsible unit of government, the referral
process is as follows:
(i) When a program beneficiary requests alternative services, the
religious organization will seek to make such a referral.
(ii) If the religious organization cannot locate an appropriate
provider of alternative services, the religious organization will
contact SAMHSA. They will work together to identify additional
alternative providers, utilizing the SAMHSA Treatment Locator system,
if appropriate.
(iii) The religious organization will contact these alternative
providers and seek to make the referral, in a manner consistent with
all applicable confidentiality laws, including, but not limited to, 42
CFR part 2 (``Confidentiality of Alcohol and Drug Abuse Patient
Records'').
(iv) In the event the religious organization is still unable to
locate an alternative provider, it may again contact SAMHSA for
assistance.
(d) Referral reporting procedures. The program participant shall
notify the appropriate Federal, State or local government agency that
administers the program of such referral. If a State or local
government is the responsible unit of government, it may determine its
own reporting procedures. When SAMHSA is the responsible unit of
government, this notification will occur during the course of the
regular reports that may be required under the terms of the funding
award.
(e) Provision and funding of alternative services. The responsible
unit of government, as defined in paragraph (a) of this section, shall
provide to an otherwise eligible program beneficiary or prospective
program beneficiary who objects to the religious character of a program
participant, services and fund services from an alternative provider
that is reasonably accessible to, and has the capacity to provide such
services to the individual. Such services shall have a value that is
not less than the value of the services that the individual would have
received from the program participant to which the individual had such
objection. The appropriate State or local governments

[[Page 56448]]

that administer SAMHSA-funded programs shall ensure that notice of
their right to alternative services is provided to applicants or
recipients. The alternative provider need not be a secular
organization. It must simply be a provider to which the program
beneficiary has no religious objection.
(1) When the State receives a discretionary grant from SAMHSA, it
shall utilize its own implementation procedures for these provisions
and shall use funds from the SAMHSA discretionary grant to finance such
alternative services, as needed;
(2) When the local government receives a discretionary grant from
SAMHSA, it shall utilize State implementation procedures for these
provisions and shall use funds from the SAMHSA discretionary grant to
finance such alternative services, as needed;
(3) When a religious organization receives a discretionary grant
from SAMHSA, if a publicly funded alternative provider is available
that is reasonably accessible and can provide equivalent services, the
religious organization shall refer the beneficiary to that provider.
However, if such a provider is not available, the religious
organization shall contract with an alternative provider to provide
such services and may finance such services with funds from the SAMHSA
discretionary grant.

Sec. 54a.9 Oversight of the Charitable Choice requirements.

In order to ensure that program funds are used in compliance with
the SAMHSA Charitable Choice provisions, applicants for funds under
applicable programs are required, as part of their applications for
funding, to certify that they will comply with all of the requirements
of the SAMHSA Charitable Choice provisions and the implementing
regulations under this part.

Sec. 54a.10 Fiscal accountability.

(a) Religious organizations that receive applicable program funds
for substance abuse services are subject to the same regulations as
other nongovernmental organizations to account, in accordance with
generally accepted auditing and accounting principles, for the use of
such funds.
(b) Religious organizations shall segregate Federal funds they
receive under applicable programs into a separate account from non-
Federal funds. Only the Federal funds shall be subject to audit by the
government under the SAMHSA program.

Sec. 54a.11 Effect on State and local funds.

If a State or local government contributes its own funds to
supplement activities carried out under the applicable programs, the
State or local government has the option to separate out the Federal
funds or commingle them. If the funds are commingled, the provisions of
this part shall apply to all of the commingled funds, in the same
manner, and to the same extent, as the provisions apply to the Federal
funds.

Sec. 54a.12 Treatment of intermediate organizations.

Sec. 54a.13 Educational requirements for personnel in drug treatment
programs.

Sec. 54a.14 Determination of nonprofit status.

The nonprofit status of any SAMHSA applicant can be determined by
any of the following:
(a) Reference to the organization's listing in the Internal Revenue
Service's (IRS) most recent list of tax-exempt organizations described
in section 501(c)(3) of the IRS code.
(b) A copy of a currently valid IRS Tax exemption certificate.
(c) A statement from a State taxing body, State Attorney General,
or other appropriate State official certifying that the applicant
organization has a nonprofit status and that none of its net earnings
accrue to any private shareholder or individuals.
(d) A certified copy of the organization's certificate of
incorporation or similar document if it clearly establishes the
nonprofit status of the organization.
(e) Any of the above proof for a State or national parent
organization and a statement signed by the parent organization that the
applicant organization is a local nonprofit affiliate.

Appendix--to Part 54a--Model Notice of Individuals Receiving Substance
Abuse Services

Model Notice to Individuals Receiving Substance Abuse Services

No provider of substance abuse services receiving Federal funds
from the U.S. Substance Abuse and Mental Health Services
Administration, including this organization, may discriminate
against you on the basis of religion, a religious belief, a refusal
to hold a religious belief, or a refusal to actively participate in
a religious practice.
If you object to the religious character of this organization,
Federal law gives you the right to a referral to another provider of
substance abuse services. The referral, and your receipt of
alternative services, must occur within a reasonable period of time
after you request them. The alternative provider must be accessible
to you and have the capacity to provide substance abuse services.
The services provided to you by the alternative provider must be of
a value not less than the value of the services you would have
received from this organization.

45 CFR Subtitle A

PART 96--[AMENDED]

0
1. The authority for part 96 continues to read as follows:

Authority: 31 U.S.C. 1243 note, 7501-7507; 42 U.S.C. 300w et
seq., 300x et seq., 300y et seq., 701 et seq., 8621 et seq., 9901 et
seq., 1397 et seq.

0
2. Amend Sec. 96.122(f)(5) by adding paragraph (f)(5)(v) to read as
follows:

Sec. 96.122 Application content and procedures.

* * * * *
(f) * * *
(5) * * *
(v) A description of the activities the State has undertaken to
comply with 42 CFR part 54.
* * * * *
0
3. Amend Sec. 96.123(a) by adding paragraph (a)(18) to read as
follows:

Sec. 96.123 Assurances.

(a) * * *

[[Page 56449]]

(18) The State will comply with the requirements of 42 CFR part 54.

[FR Doc. 03-24289 Filed 9-25-03; 12:15 pm]
BILLING CODE 4150-31-P