[Code of Federal Regulations]
[Title 45, Volume 4]
[Revised as of October 1, 2002]
From the U.S. Government Printing Office via GPO Access
[CITE: 45CFR1386.21]

[Page 394]
 
                        TITLE 45--PUBLIC WELFARE
 
CHAPTER XIII--OFFICE OF HUMAN DEVELOPMENT SERVICES, DEPARTMENT OF HEALTH 
                           AND HUMAN SERVICES
 
PART 1386--FORMULA GRANT PROGRAMS--Table of Contents
 
  Subpart B--State System for Protection and Advocacy of the Rights of 
               Individuals with Developmental Disabilities
 
Sec. 1386.21  Requirements and authority of the Protection and Advocacy System.

    (a) In order for a State to receive Federal financial participation 
for Protection and Advocacy activities under this subpart, as well as 
the State Developmental Disabilities Council activities (subpart C of 
this part), the Protection and Advocacy System must meet the 
requirements of section 142 of the Act (42 U.S.C. 6042) and that system 
must be operational.
    (b) Allotments must be used to supplement and not to supplant the 
level of non-federal funds available in the State for activities under 
the Act, which shall include activities on behalf of individuals with 
developmental disabilities to remedy abuse, neglect and violations of 
rights as well and information and referral activities.
    (c) A Protection and Advocacy System shall not implement a policy or 
practice restricting the remedies which may be sought on the behalf of 
individuals with developmental disabilities or compromising the 
authority of the Protection and Advocacy System (P&A) to pursue such 
remedies through litigation, legal action or other forms of advocacy. 
However, the above requirement does not prevent the P&A from developing 
case or client acceptance criteria as part of the annual priorities 
identified by the P&A system as described in Sec. 1386.23(c) of this 
part. Clients must be informed at the time they apply for services of 
such criteria.
    (d) A P&A system shall be free from hiring freezes, reductions in 
force, prohibitions on staff travel, or other policies, imposed by the 
State, to the extent that such policies would impact system program 
staff or functions funded with Federal funds and would prevent the 
system from carrying out its mandates under the Act.
    (e) A Protection and Advocacy System shall have sufficient staff, 
qualified by training and experience, to carry out the responsibilities 
of the system in accordance with the priorities of the system and 
requirements of the Act, including the investigation of allegations of 
abuse, neglect and representations of individuals with developmental 
disabilities regarding rights violations.
    (f) A Protection and Advocacy System may exercise its authority 
under State law where the authority exceeds the authority required by 
the Developmental Disabilities Assistance and Bill of Rights Act, as 
amended. However, State law must not diminish the required authority of 
the Protection and Advocacy System.
    (g) Each P&A system that is a public system without a multimember 
governing or advisory board must establish an advisory council in order 
to provide a voice for individuals with developmental disabilities. The 
Advisory Council shall advise the P&A on program policies and priorities 
and shall be comprised of a majority of individuals with developmental 
disabilities who are eligible for services, or have received or are 
receiving services or parents or family members, (including those 
representing individuals with developmental disabilities who live in 
institutions and home and community based settings), guardians, 
advocates, or authorized representatives of such individuals.
    (h) Prior to any Federal review of the State program, a 30 day 
notice and an opportunity for public comment must be provided. 
Reasonable effort shall be made by the appropriate Regional Office to 
seek comments through notification to major disability advocacy groups, 
the State Bar, other disability law resources, the State Developmental 
Disabilities Council and the University Affiliated Program, for example, 
through newsletters and publications of those organizations. The 
findings of public comments may be consolidated if sufficiently similar 
issues are raised and they shall be included in the report of the onsite 
visit.
    (i) Before the P&A system releases information to individuals not 
otherwise authorized to receive it, the P&A must obtain written consent 
from the client requesting assistance, if competent, or his or her 
guardian.

[61 FR 51157, Sept. 30, 1996]

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