[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: 45CFR1386.20]



[Page 341-344]

 

                        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. 1386.20  Designated State Protection and Advocacy agency.



    (a) The designating official must designate the State official or 

public or private agency to be accountable for proper use of funds and 

conduct of the Protection and Advocacy agency.

    (b) An agency of the State or private agency providing direct 

services, including guardianship services may not be designated as a 

Protection and Advocacy agency.

    (c) In the event that an entity outside of the State government is 

designated to carry out the program, the designating official or entity 

must assign a responsible State official to receive, on behalf of the 

State, notices of disallowances and compliance actions as the State is 

accountable for the



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proper and appropriate expenditure of Federal funds.

    (d) (1) Prior to any redesignation of the agency which administers 

and operates the State Protection and Advocacy (P&A) System, the 

designating official must give written notice of the intention to make 

the redesignation to the agency currently administering and operating 

the State Protection and Advocacy System by registered or certified 

mail. The notice must indicate that the proposed redesignation is being 

made for good cause. The designating official must also publish a public 

notice of the proposed action. The agency and the public shall have a 

reasonable period of time, but not less than 45 days to respond to the 

notice.

    (2) The public notice must include:

    (i) The Federal requirements for the Protection and Advocacy system 

for individuals with developmental disabilities (section 142 of the 

Act); and, where applicable, the requirements of other Federal advocacy 

programs administered by the State Protection and Advocacy System.

    (ii) The goals and function of the State's Protection and Advocacy 

System including the current Statement of Objectives and Priorities;

    (iii) The name and address of the agency currently designated to 

administer and operate the Protection and Advocacy system; and an 

indication of whether the agency also operates other Federal advocacy 

programs;

    (iv) A description of the current Protection and Advocacy agency and 

the system it administers and operates including, as applicable, 

descriptions of other Federal advocacy programs it operates;

    (v) A clear and detailed explanation of the good cause for the 

proposed redesignation;

    (vi) A statement suggesting that interested persons may wish to 

write the current State Protection and Advocacy agency at the address 

provided in paragraph (d)(2)(iii) of this section to obtain a copy of 

its response to the notice required by paragraph (d)(1)of this section. 

Copies shall be provided in accessible formats to individuals with 

disabilities upon request;

    (vii) The name of the new agency proposed to administer and operate 

the Protection and Advocacy System under the Developmental Disabilities 

program. This agency will be eligible to administer other Federal 

advocacy programs;

    (viii) A description of the system which the new agency would 

administer and operate, including a description of all other Federal 

advocacy programs the agency would operate;

    (ix) The timetable for assumption of operations by the new agency 

and the estimated costs of any transfer and start-up operations; and

    (x) A statement of assurance that the proposed new designated State 

P&A System will continue to serve existing clients and cases of the 

current P&A system or refer them to other sources of legal advocacy as 

appropriate, without disruption.

    (3) The public notice as required by paragraph (d)(1) of this 

section, must be in a format accessible to individuals with 

developmental disabilities or their representatives, e.g., tape, 

diskette. The designating official must provide for publication of the 

notice of the proposed redesignation using the State register, State-

wide newspapers, public service announcements on radio and television, 

or any other legally equivalent process. Copies of the notice must be 

made generally available to individuals with developmental disabilities 

and mental illness who live in residential facilities through posting or 

some other means.

    (4) After the expiration of the public comment period required in 

paragraph (d)(1) of this section, the designating official must conduct 

a public hearing on the redesignation proposal. After consideration of 

all public and agency comments, the designating official must give 

notice of the final decision to the currently designated agency and the 

public through the same means used under paragraph (d)(3) of this 

section. This notice must include a clear and detailed explanation of 

the good cause finding. If the notice to the currently designated agency 

states that the redesignation will take place, it also must inform the 

agency of its right to appeal this decision to the Assistant Secretary, 

Administration for Children and Families and provide a



[[Page 343]]



summary of the public comments received in regard to the notice of 

intent to redesignate and the results of the public hearing and its 

responses to those comments. The redesignation shall not be effective 

until 10 working days after notifying the current Protection and 

Advocacy agency or, if the agency appeals, until the Assistant Secretary 

has considered the appeal.

    (e) (1) Following notification pursuant to paragraph (d)(4) of this 

section, the Protection and Advocacy agency which is the subject of such 

action, may appeal the redesignation to the Assistant Secretary. To do 

so, the Protection and Advocacy agency must submit an appeal in writing 

to the Assistant Secretary within 20 days of receiving official 

notification under paragraph (d)(4) of this section, with a separate 

copy sent by registered or certified mail to the designating official 

who made the decision concerning redesignation.

    (2) In the event that the agency subject to redesignation does 

exercise its right to appeal under paragraph (e)(1) of this section, the 

designating official must give public notice of the Assistant 

Secretary's final decision regarding the appeal through the same means 

utilized under paragraph (d)(3) of this section within 10 working days 

of receipt of the Assistant Secretary's final decision under paragraph 

(e)(6) of this section.

    (3) The designating official within 10 working days from the receipt 

of a copy of the appeal must provide written comments to the Assistant 

Secretary (with a copy sent by registered or certified mail to the 

Protection and Advocacy agency appealing under paragraph (e)(1) of this 

section), or withdraw the redesignation. The comments must include a 

summary of the public comments received in regard to the notice of 

intent to redesignate and the results of the public hearing and its 

responses to those comments.

    (4) In the event that the designating official withdraws the 

redesignation while under appeal pursuant to paragraph (e)(1) of this 

section, the designating official must notify the Assistant Secretary, 

and the current agency, and must give public notice of his or her 

decision through the same means utilized under paragraph (d)(3) of this 

section.

    (5) As part of their submission under paragraph (e)(1) or (e)(3) of 

this section, either party may request, and the Assistant Secretary may 

grant, an opportunity for an informal meeting with the Assistant 

Secretary at which representatives of both parties will present their 

views on the issues in the appeal. The meeting will be held within 20 

working days of the submission of written comments by the designating 

official under paragraph (e)(2) of this section. The Assistant Secretary 

will promptly notify the parties of the date and place of the meeting.

    (6) Within 30 days of the informal meeting under paragraph (e)(5) of 

this section, or, if there is no informal meeting under paragraph (e)(5) 

of this section, within 30 days of the submission under paragraph (e)(3) 

of this section, the Assistant Secretary will issue to the parties a 

final written decision on whether the redesignation was for good cause 

as defined in paragraph (d)(1) of this section. The Assistant Secretary 

will consult with Federal advocacy programs that will be directly 

affected by the proposed redesignation in making a final decision on the 

appeal.

    (f) (1) Within 30 days after the redesignation becomes effective 

under paragraph (d)(4) of this section, the designating official must 

submit an assurance to the Assistant Secretary that the newly designated 

Protection and Advocacy agency meets the requirements of the statute and 

the regulations.

    (2) In the event that the Protection and Advocacy agency subject to 

redesignation does not exercise its rights to appeal within the period 

provided under paragraph (e)(1) of this section, the designating 

official must provide to the Assistant Secretary documentation that the 

agency was redesignated for good cause. Such documentation must clearly 

demonstrate that the Protection and Advocacy agency subject to 

redesignation was not redesignated for any actions or activities which 

were carried out under section 142 of the Act, these regulations or any 

other



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Federal advocacy program's legislation or regulations.



[49 FR 11779, Mar. 27, 1984, as amended at 52 FR 44846, Nov. 20, 1987; 

61 FR 51156, Sept. 30, 1996]