[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: 45CFR1386.21]



[Page 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. 1386.21  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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