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Administration on Developmental Disabilitiesskip to primary page content

Program Instructions ADD PI-86-3

ADD-PI-86-3
Issued 10/31/86

TO:

Directors,
Protection and Advocacy Systems

SUBJECT:

Court Judgments awarded to Protection and Advocacy Systems

 

LEGAL AND RELATED REFERENCES:
Developmental Disabilities Assistance and Bill of Rights Act of 1984, Public Law 98-527

45 CFR Part 1386, Developmental Disabilities Program

Final Rule; 45 CFR Part 74, Administration of Grants

ADD-IM-85-4 dated March 8, 1985, subject: Program Income.

BACKGROUND:
In several recent instances, we have been informed of court judgments awarded to Protection and Advocacy Systems after litigation has been initiated by such systems. The use and reporting of funds awarded to Protection and Advocacy Systems have been inconsistent. The purpose of this Program Instruction is to provide guidance concerning the proper treatment of funds awarded from court judgments.

INFORMATION:
We have studied the general nature of typical court judgments and the circumstances concerning Protection and Advocacy suits on behalf of developmentally disabled persons. In our opinion, funds awarded to Protection and Advocacy Systems, as distinguished from their clients, as the result of legal proceedings constitute general program income if the criteria for determining program income under 45 CFR 74.41(a) and 74.42(a) are met. The relationship between the amounts of the court judgments and the amounts expended by the Protection and Advocacy Systems on the court proceedings is unimportant in classifying the proceeds as program income. All of the proceeds realized by Protection and Advocacy Systems through court action that meet the criteria of 45 CFR 71.41(a) and 74.42(a) must be classified and treated as program income. This Program Instruction applies to all funds awarded through court judgments, including awards specifically identified as attorney fees. General program income received through court judgments should be reported on the financial status reports (SF-269's) and used in accordance with either the deduction alternative or the additional costs alternative as described in ADD-IM-85-4, 45 CFR Part 74.42 and in the State Plan. The matching alternative may not be used, since there is no matching requirement. Under the additional costs alternative, the funds may be used for costs which would otherwise be unallowable under the Protection and Advocacy Program. However, such funds must be used to further the broad objectives of the Protection and Advocacy statute. Funds expended on litigation and program income recovered from court judgments should be reported as provided in ADD's separate instructions for completing the SF-269's. We recognize that many different situations exist throughout the nation as to how grantees secure legal representation for court cases. Where Protection and Advocacy Systems contract for legal services, their own procedures and the applicable procurement standards (either OMB Circular A-102, Attachment O or OMB Circular A-110, Attachment O) must be followed. Both of the OMB Circulars prohibit using the cost plus a percentage of cost method of contracting. The only situations where attorneys may receive funds awarded as attorney fees through court judgments are those in which the attorneys (who are not employees or contractors of Protection and Advocacy Systems) have represented clients on behalf of Protection and Advocacy Systems on no-fee bases. Vigilance must be exercised to assure that funds awarded through court judgments are used by the Protection and Advocacy Systems to further the objectives of the program. It was never intended nor is there a legal basis for such funds to be used to augment grantee payments to legal contractors or grantee staff as additional fees and personal bonuses.

/signature/

Casimer R. Wichlacz
Acting Commissioner
Administration on Developmental Disabilities

EFFECTIVE DATE: Upon Issuance

INQUIRIES TO: HDS Regional Administrators

ADD-PI-86-3