[Code of Federal Regulations]
[Title 45, Volume 4]
[Revised as of October 1, 2007]
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]