[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: 45CFR1386.111]



[Page 356-357]

 

                        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. 1386.111  Decisions following hearing.



    (a) If the Assistant Secretary is the presiding officer, he or she 

must issue a decision within 60 days after the time for submission of 

posthearing briefs has expired.

    (b)(1) If the presiding officer is a person designated by the 

Assistant Secretary, he or she must, within 30 days after the time for 

submission of posthearing briefs has expired, certify the entire record 

to the Assistant Secretary including recommended findings and proposed 

decision. The Assistant Secretary must serve a copy of the recommended 

findings and proposed decision upon all parties and amici.

    (2) Any party may, within 20 days, file exceptions to the 

recommended



[[Page 357]]



findings and proposed decision and supporting brief or statement with 

the Assistant Secretary.

    (3) The Assistant Secretary must review the recommended decision 

and, within 60 days of its issuance, issue his or her own decision.

    (c) If the Assistant Secretary concludes:

    (1) In the case of a hearing pursuant to sections 122, 127, or 142 

of the Act, that a State plan or the activities of the State's 

Protection and Advocacy System does not comply with Federal 

requirements, he or she shall also specify whether the State's payment 

or allotment for the fiscal year will not be authorized for the State or 

whether, in the exercise of his or her discretion, the payment or 

allotment will be limited to the parts of the State plan or the 

activities of the State's Protection and Advocacy System not affected by 

the noncompliance.

    (2) In the case of a hearing pursuant to section 127 of the Act that 

the State is not complying with the requirements of the State plan, he 

or she must also specify whether the State's payment or allotment will 

not be made available to the State or whether, in the exercise of his or 

her discretion, the payment or allotment will be limited to the parts of 

the State plan not affected by such noncompliance. The Assistant 

Secretary may ask the parties for recommendations or briefs or may hold 

conferences of the parties on these questions.

    (d) The decision of the Assistant Secretary under this section is 

the final decision of the Secretary and constitutes ``final agency 

action'' within the meaning of 5 U.S.C. 704 and the ``Secretary's 

action'' within the meaning of Section 129 of the Act (42 U.S.C. 6029). 

The Assistant Secretary's decision must be promptly served on all 

parties and amici.



[49 FR 11779, Mar. 27, 1984, as amended at 52 FR 44847, Nov. 20, 1987; 

61 FR 51162, Sept. 30, 1996]