ADD Program Overall
[Code of Federal Regulations]
[Title 45, Volume 4, Parts 1200 to end]
[Revised as of October 1, 1997]
From the U.S. Government Printing Office via GPO Access
[CITE: 45CFR1385]
TITLE 45--PUBLIC WELFARE
CHAPTER XIII--OFFICE OF HUMAN DEVELOPMENT SERVICES, DEPARTMENT OF HEALTH AND HUMAN SERVICES
PART 1385--REQUIREMENTS APPLICABLE TO THE DEVELOPMENTAL DISABILITIES PROGRAM
Section
1385.1 General.
1385.2 Purpose of the regulations.
1385.3 Definitions.
1385.4 Rights of individuals with developmental disabilities.
1385.5 [Reserved]
1385.6 Employment of individuals with disabilities.
1385.7 [Reserved]
1385.8 Formula for determining allotments.
1385.9 Grants administration requirements.
Authority: 42 U.S.C. 6000 et. seq.
Source: 49 FR 11777, Mar. 27, 1984, unless otherwise noted.
Sec. 1385.1 General
Except as specified in Sec. 1385.4, the requirements in this Part are applicable to the following programs and projects:
(a) Federal Assistance to State Developmental Disabilities Councils;
(b) Protection and Advocacy of the Rights of Individuals with Developmental Disabilities;
(c)Projects of National Significance;and
(d) University Affiliated Programs (UAPs).[52 FR 44845, Nov. 20, 1987, as amended at 54 FR 47984, Nov. 20, 1989;
61 FR 51153, Sept. 30, 1996]
Sec. 1385.2 Purpose of the regulations.
These regulations implement the Developmental Disabilities Assistance and Bill of Rights Act as amended (42 U.S.C. 6000, et seq.).
Sec. 1385.3 Definitions.
In addition to the definitions in Section 102 of the Act (42 U.S.C. 6001), the following definitions apply:
ACF means the Administration for Children and Families within the Department of Health and Human Services.
Act means the Developmental Disabilities Assistance and Bill of Rights Act, as amended (42 U.S.C. 6000 et. seq).
ADD means the Administration on Developmental Disabilities, within the Administration for Children and Families.
Commissioner means the Commissioner of the Administration on Developmental Disabilities, Administration for Children and Families, Department of Health and Human Services or his or her designee.
Department means the U.S. Department of Health and Human Services (HHS).
Developmental disability shall have the same meaning in 45 CFR Parts 1385, 1386, 1387, and 1388 as it does in the Developmental Disabilities Act, Section 102(8), which reads:
"the term 'developmental disability' means a severe, chronic disability of an individual 5 years of age or older that--
(1) Is attributable to a mental or physical impairment or combination of mental and physical impairments;
(2) Is manifested before the individual attains age 22;
(3) Is likely to continue indefinitely;
(4) Results in substantial functional limitations in three or more of the following areas of major life activity--
(i) Self-care;
(ii) Receptive and expressive language;
(iii) Learning;
(iv) Mobility;
(v) Self-direction;
(vi) Capacity for independent living; and
(vii) Economic self-sufficiency;
(5) Reflects the individual's need for a combination and sequence of special, interdisciplinary, or generic services, supports, or other assistance that is of lifelong or extended duration and is individually planned and coordinated, except that such term, when applied to infants and young children means individual from birth to age 5, inclusive, who have substantial developmental delay or specific congenital or acquired conditions with a high probability of resulting in developmental disabilities if services are not provided."
Such determination shall be made on a case-by-case basis, and any State eligibility definition of developmental disability or policy statement which is more restrictive than that of the Act does not apply as the Act takes precedence.
Fiscal year means the Federal fiscal year unless otherwise specified.
Governor means the chief executive officer of the State or Territory, or his or her designee who has been formally designated to act for the Governor in carrying out the requirements of the Act and these regulations.
OHDS means the Office of Human Developmental Services within the Department of Health and Human Services.
Protection and Advocacy Agency means the organization or agency designated in a State to administer and operate a protection and advocacy (P&A) system for individuals with developmental disabilities under Part C of the Developmental Disabilities Assistance and Bill of Rights Act, as amended (a P&A System under Part C is authorized to investigate incidents of abuse and neglect regarding persons with developmental disabilities; pursue administrative, legal and appropriate remedies or approaches to ensure protection of, and advocacy for, the rights of such individuals; and provide information on and referral to programs and services addressing the needs of such individuals (Section 142(a)(2)(A).); and advocacy programs under the Protection and Advocacy for Mentally Ill Individuals Act of 1986 (PAIMI Act), as amended, (42 U.S.C. 10801 et seq.) the Protection and Advocacy of Individual Rights Program (PAIR), (29 U.S.C. 794(e); and the Technology-Related Assistance for Individuals With Disabilities Act of 1988, as amended (29 U.S.C. 2212(e)). The Protection and Advocacy agency also may be designated by the Governor of a State to conduct the Client Assistance Program (CAP) authorized by Section 112 of the Rehabilitation Act of 1973, as amended, (29 U.S.C. 732). Finally, the Protection and Advocacy agency may provide advocacy services under other Federal programs.
Secretary means the Secretary of the Department of Health and Human Services.
[49 FR 11777, Mar. 27, 1984, as amended at 52 FR 44845, Nov. 20, 1987; 54 FR 47984, Nov. 20, 1989; 61 FR 51153, Sept. 30, 1996]
Sec. 1385.4 Rights of individuals with developmental disabilities.
(a) Section 110 of the Act, Rights of Individuals with Developmental Disabilities (42 U.S.C. 6009) is applicable to the programs authorized under the Act, except for the Protection and Advocacy System.
(b) In order to comply with Section 122(c)(5)(G) of the Act (42 U.S.C. 6022(c)(5)(G)), regarding the rights of individuals with developmental disabilities, the State must meet the requirements of 45 CFR 1386.30(f)(2).
(c) Applications from university affiliated programs or for projects of national significance grants must also contain an assurance that the human rights of individuals assisted by these programs will be protected consistent with Section 110 (see Section 153(c)(3) and Section 162(c)(3) of the Act).
[61 FR 51154, Sept. 30, 1996]
Sec. 1385.5 [Reserved]
Sec. 1385.6 Employment of individuals with disabilities.
Each grantee which receives Federal funding under the Act must meet the requirements of Section 109 of the Act (42 U.S.C. 6008) regarding affirmative action. The grantee must take affirmative action to employ and advance in employment and otherwise treat qualified individuals with disabilities without discrimination based upon their physical or mental disability in all employment practices such as the following:
Advertising, recruitment, employment, rates of pay or other forms of compensation, selection for training, including apprenticeship, upgrading, demotion or transfer, and layoff or termination. This obligation is in addition to the requirements of 45 CFR Part 84, subPart B, prohibiting discrimination in employment practices on the basis of disability in programs receiving assistance from the Department.
Recipients of funds under the Act also may be bound by the provisions of the Americans with Disabilities Act (Pub. L. 101-336, 42 U.S.C. 12101 et seq.) with respect to employment of individuals with disabilities.
Failure to comply with Section 109 of the Act may result in loss of Federal funds under the Act. If a compliance action is taken, the State will be given reasonable notice and an opportunity for a hearing as provided in SubPart D of 45 CFR Part 1386.
[61 FR 51154, Sept. 30, 1996]
Sec. 1385.7 [Reserved]
Sec. 1385.8 Formula for determining allotments.
The Commissioner will allocate funds appropriated under the Act for the State Developmental Disabilities Councils and the Protection and Advocacy Systems on the following basis:
(a) Two-thirds of the amount appropriated are allotted to each State according to the ratio the population of each State bears to the population of the United States. This ratio is weighted by the relative per capita income for each State. The data used to compute allotments are supplied by the U.S. Department of Commerce, for the three most recent consecutive years for which satisfactory data are available.
(b) One-third of the amount appropriated is allotted to each State on the basis of the relative need for services of persons with developmental disabilities. The relative need is determined by the number of persons receiving benefits under the Childhood Disabilities Beneficiary Program (Section 202(d)(1)(B)(ii) of the Social Security Act), (42 U.S.C. 402(d)(1)(B)(ii)).
[49 FR 11777, Mar. 27, 1984, as amended at 61 FR 51154, Sept. 30, 1996]
Sec. 1385.9 Grants administration requirements.
(a) The following Parts of title 45 CFR apply to grants funded under Parts 1386 and 1388 of this chapter and to grants for Projects of National Significance under Section 162 of the Act (42 U.S.C. 6082).
45 CFR Part 16--Procedures of the Departmental Grant Appeals Board.
45 CFR Part 46--Protection of Human Subjects.
45 CFR Part 74--Administration of Grants.
45 CFR Part 75--Informal Grant Appeals Procedures.
45 CFR Part 80--Nondiscrimination under Programs Receiving Federal Assistance Through the Department of Health and Human Services-- Effectuation of title VI of the Civil Rights Act of 1964.
45 CFR Part 81--Practice and Procedure for Hearings Act under Part 80 of this title.
45 CFR Part 84--Nondiscrimination on the Basis of Handicap in Programs and Activities Receiving or Benefiting from Federal Financial Assistance.
45 CFR Part 86--Nondiscrimination on the Basis of Sex in Education Programs and Activities Receiving or Benefiting from Federal Financial Assistance.
45 CFR Part 91--Nondiscrimination on the Basis of Age in Programs or Activities Receiving Federal Financial Assistance from HHS.
45 CFR Part 92--Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments.
(b) The Departmental Appeals Board also has jurisdiction over appeals by grantees which have received grants under the University Affiliated program or for Projects of National Significance. The scope of the Board's jurisdiction concerning these appeals is described in 45 CFR Part 16.
(c) The Departmental Appeals Board also has jurisdiction to decide appeals brought by the States concerning any disallowances taken by the Commissioner with respect to specific expenditures incurred by the States or by contractors or subgrantees of States. This jurisdiction relates to funds provided under the two formula programs--Part B of the Act--Federal Assistance to State Developmental Disabilities Councils and Part C of the Act--Protection and Advocacy of the Rights of Individuals with Developmental Disabilities. Appeals filed by States shall be decided in accordance with 45 CFR Part 16.
(d) In making audits and examinations to any books, documents, papers, and transcripts of records of State Developmental Disabilities Councils, the University Affiliated Programs, and the Projects of National Significance grantees and subgrantees, as provided for in 45 CFR Part 74 and Part 92, the Department will keep information about individual clients confidential to the maximum extent permitted by law and regulations.
(e) (1) The Department or other authorized Federal officials may access client and case eligibility records or other records of the Protection and Advocacy system for audit purposes and for purposes of monitoring system compliance pursuant to Section 104(b) of the Act. However, such information will be limited pursuant to Section 142(j) of the Act. No personal identifying information such as name, address, and social security number will be obtained. Only eligibility information will be obtained regarding type and level of disability of individuals being served by the P&A and the nature of the issue concerning which the System represented an individual.
(2) Notwithstanding paragraph (e)(1)of this Section, if an audit,monitoring review, evaluation, or other investigation by the Department produces evidence that the system has violated the Act or the regulations, the system will bear the burden of proving its compliance. The system's inability to establish compliance because of the confidentiality of records will not relieve it of this responsibility. The system may elect to obtain a release from all individuals requesting or receiving services at the time of intake or application. The release shall state only information directly related to client and case eligibility will be subject to disclosure to officials of the Department.
[49 FR 11777, Mar. 27, 1984, as amended at 52 FR 44846, Nov. 20, 1987;
54 FR 47984, Nov. 20, 1989; 61 FR 51154, Sept.30, 1996]