[Code of Federal Regulations]

[Title 45, Volume 4]

[Revised as of October 1, 2005]

From the U.S. Government Printing Office via GPO Access

[CITE: 45CFR1386.101]



[Page 354-355]

 

                        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 D_Practice and Procedure for Hearings Pertaining to States' 

 Conformity and Compliance With Developmental Disabilities State Plans, 

                    Reports and Federal Requirements

 

Sec. 1386.101  Authority of presiding officer.



    (a) The presiding officer has the duty to conduct a fair hearing, 

avoid delay, maintain order, and make a record of the proceedings. The 

presiding officer has all powers necessary to accomplish these ends, 

including, but not limited to, the power to:

    (1) Change the date, time, and place of the hearing, upon notice to 

the parties. This includes the power to continue the hearing in whole or 

in part;

    (2) Hold conferences to settle or simplify the issues in a 

proceeding, or to consider other matters that may aid in the expeditious 

disposition of the proceedings;

    (3) Regulate participation of parties and amici curiae and require 

parties and amici curiae to state their positions with respect to the 

issues in the proceeding;



[[Page 355]]



    (4) Administer oaths and affirmations,

    (5) Rule on motions and other procedural items on matters pending 

before him or her, including issuance of protective orders or other 

relief to a party against whom discovery is sought;

    (6) Regulate the course of the hearing and conduct of counsel 

therein;

    (7) Examine witnesses;

    (8) Receive, rule on, exclude, or limit evidence or discovery;

    (9) Fix for the time for filing motions, petitions, briefs, or other 

items in matters pending before him or her,

    (10) If the presiding officer is the Assistant Secretary, make a 

final decision;

    (11) If the presiding officer is a person other than the Assistant 

Secretary, he or she shall certify the entire record, including 

recommended findings and proposed decision, to the Assistant Secretary;

    (12) Take any action authorized by the rules in the subpart or 5 

U.S.C. 551-559; and

    (b) The presiding officer does not have authority to compel the 

production of witnesses, papers, or other evidence by subpoena.

    (c) If the presiding officer is a person other than the Assistant 

Secretary, his or her authority is to render a recommended decision with 

respect to program requirements which are to be considered at the 

hearing. In case of any noncompliance, he or she shall recommend whether 

payments or allotments should be withheld with respect to the entire 

State plan or the activities of the State's Protection and Advocacy 

System, or whether the payments or allotments should be withheld only 

with respect to those parts of the program affected by such 

noncompliance.



[49 FR 11779, Mar. 27, 1984, as amended at 61 FR 51162, Sept. 30, 1996]