[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: 45CFR1386.93]



[Page 353-354]

 

                        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. 1386.93  Issues at hearing.



    (a) Prior to a hearing, the Assistant Secretary may notify the State 

in writing of additional issues which will be considered at the hearing. 

That notice must be published in the Federal Register. If that notice is 

mailed to the State less than 20 days before the date of the hearing, 

the State or any other party, at its request, must be granted a 

postponement of the hearing to a date 20 days after the notice was 

mailed, or such later date as may be agreed to by the Assistant 

Secretary.

    (b) If any issue is resolved in whole or in part, but new or 

modified issues are presented, the hearing must proceed on the new or 

modified issues.

    (c)(1) If at any time, whether prior to, during, or after the 

hearing, the Assistant Secretary finds that the State has come into 

compliance with Federal requirements on any issue in whole or in part, 

he or she must remove the issue from the proceedings in whole or in part 

as may be appropriate. If all issues are removed the Assistant Secretary 

must terminate the hearing.

    (2) Prior to the removal of an issue, in whole or in part, from a 

hearing involving issues relating to the conformity with Federal 

requirements under Part B of the Act, of the State plan or the 

activities of the State's Protection and Advocacy System, the Assistant 

Secretary must provide all parties other than the Department and the 

State (see Sec. 1386.94(b)) with the statement of his or her intention 

to remove an issue from the hearings and the reasons for that decision. 

A copy of the proposed State plan provision or document explaining 

changes in the activities of the State's protection and advocacy system 

on which the State and the Assistant Secretary have settled must be sent 

to the parties. The parties must have an opportunity to submit in 

writing within 15 days their views as to, or any information bearing 

upon, the merits of the proposed provision and the merits of the reasons 

for removing the issue from the hearing.

    (d) In hearings involving questions of noncompliance of a State's 

operation of its program under Part B of the Act with the State plan or 

with Federal requirements or compliance of the State's Protection and 

Advocacy System with Federal requirements, the same procedure set forth 

in paragraph (c)(2) of this section must be followed



[[Page 354]]



with respect to any report or evidence resulting in a conclusion by the 

Assistant Secretary that a State has achieved compliance.

    (e) The issues considered at the hearing must be limited to those 

issues of which the State is notified as provided in Sec. 1386.90 and 

paragraph (a) of this section, and new or modified issues described in 

paragraph (b) of this section, and may not include issues or parts of 

issues removed from the proceedings pursuant to paragraph (c) of this 

section.



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