[Title 45 CFR ]
[Code of Federal Regulations (annual edition) - October 1, 2017 Edition]
[From the U.S. Government Publishing Office]



[[Page i]]

          

          Title 45

Public Welfare


________________________

Part 1200 to End

                         Revised as of October 1, 2017

          Containing a codification of documents of general 
          applicability and future effect

          As of October 1, 2017
                    Published by the Office of the Federal Register 
                    National Archives and Records Administration as a 
                    Special Edition of the Federal Register

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                            Table of Contents



                                                                    Page
  Explanation.................................................       v

  Title 45:
    SUBTITLE B--Regulations Relating to Public Welfare 
      (Continued) 
          Chapter XII--Corporation for National and Community 
          Service                                                    5
          Chapter XIII--Administration for Children and 
          Families, Department of Health and Human Services         73
          Chapter XVI--Legal Services Corporation                  413
          Chapter XVII--National Commission on Libraries and 
          Information Science                                      531
          Chapter XVIII--Harry S. Truman Scholarship 
          Foundation                                               551
          Chapter XXI--Commission of Fine Arts                     571
          Chapter XXIII--Arctic Research Commission                593
          Chapter XXIV--James Madison Memorial Fellowship 
          Foundation                                               603
          Chapter XXV--Corporation for National and Community 
          Service                                                  623
  Finding Aids:
      Table of CFR Titles and Chapters........................     861
      Alphabetical List of Agencies Appearing in the CFR......     881
      List of CFR Sections Affected...........................     891

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                     ----------------------------

                     Cite this Code: CFR
                     To cite the regulations in 
                       this volume use title, 
                       part and section number. 
                       Thus, 45 CFR 1201.1 refers 
                       to title 45, part 1201, 
                       section 1.

                     ----------------------------

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                               EXPLANATION

    The Code of Federal Regulations is a codification of the general and 
permanent rules published in the Federal Register by the Executive 
departments and agencies of the Federal Government. The Code is divided 
into 50 titles which represent broad areas subject to Federal 
regulation. Each title is divided into chapters which usually bear the 
name of the issuing agency. Each chapter is further subdivided into 
parts covering specific regulatory areas.
    Each volume of the Code is revised at least once each calendar year 
and issued on a quarterly basis approximately as follows:

Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1

    The appropriate revision date is printed on the cover of each 
volume.

LEGAL STATUS

    The contents of the Federal Register are required to be judicially 
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie 
evidence of the text of the original documents (44 U.S.C. 1510).

HOW TO USE THE CODE OF FEDERAL REGULATIONS

    The Code of Federal Regulations is kept up to date by the individual 
issues of the Federal Register. These two publications must be used 
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    To determine whether a Code volume has been amended since its 
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OMB CONTROL NUMBERS

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Federal agencies to display an OMB control number with their information 
collection request.

[[Page vi]]

Many agencies have begun publishing numerous OMB control numbers as 
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PAST PROVISIONS OF THE CODE

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``[RESERVED]'' TERMINOLOGY

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INCORPORATION BY REFERENCE

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this volume.

[[Page vii]]

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    Oliver A. Potts,
    Director,
    Office of the Federal Register.
    October 1, 2017.







[[Page ix]]



                               THIS TITLE

    Title 45--Public Welfare is composed of four volumes. The parts in 
these volumes are arranged in the following order: Parts 1-199, 200-499, 
500-1199, and 1200 to end. Volume one (parts 1-199) contains all current 
regulations issued under subtitle A--Department of Health and Human 
Services. Volume two (parts 200-499) contains all current regulations 
issued under subtitle B--Regulations Relating to Public Welfare, chapter 
II--Office of Family Assistance (Assistance Programs), Administration 
for Children and Families, Department of Health and Human Services, 
chapter III--Office of Child Support Enforcement (Child Support 
Enforcement Program), Administration for Children and Families, 
Department of Health and Human Services, and chapter IV--Office of 
Refugee Resettlement, Administration for Children and Families, 
Department of Health and Human Services. Volume three (parts 500-1199) 
contains all current regulations issued under chapter V--Foreign Claims 
Settlement Commission of the United States, Department of Justice, 
chapter VI--National Science Foundation, chapter VII--Commission on 
Civil Rights, chapter VIII--Office of Personnel Management, chapter IX--
Denali Commission, chapter X--Office of Community Services, 
Administration for Children and Families, Department of Health and Human 
Services, and chapter XI--National Foundation on the Arts and the 
Humanities. Volume four (part 1200 to end) contains all current 
regulations issued under chapter XII--Corporation for National and 
Community Service, chapter XIII--Administration for Children and 
Families, Department of Health and Human Services, chapter XVI--Legal 
Services Corporation, chapter XVII--National Commission on Libraries and 
Information Science, chapter XVIII--Harry S Truman Scholarship 
Foundation, chapter XXI--Commission of Fine Arts, chapter XXIII--Arctic 
Research Commission, chapter XXIV--James Madison Memorial Fellowship 
Foundation, and chapter XXV--Corporation for National and Community 
Service. The contents of these volumes represent all of the current 
regulations codified under this title of the CFR as of October 1, 2017.

    For this volume, Gabrielle E. Burns was Chief Editor. The Code of 
Federal Regulations publication program is under the direction of John 
Hyrum Martinez, assisted by Stephen J. Frattini.

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                        TITLE 45--PUBLIC WELFARE




                  (This book contains part 1200 to end)

  --------------------------------------------------------------------

     SUBTITLE B--Regulations Relating to Public Welfare (Continued)

                                                                    Part

chapter xii--Corporation for National and Community Service.        1201

chapter xiii--Administration for Children and Families, 
  Department of Health and Human Services...................        1301

chapter xvi--Legal Services Corporation.....................        1600

chapter xvii--National Commission on Libraries and 
  Information Science.......................................        1700

chapter xviii--Harry S. Truman Scholarship Foundation.......        1800

chapter xxi--Commission of Fine Arts........................        2101

chapter xxiii--Arctic Research Commission...................        2301

chapter xxiv--James Madison Memorial Fellowship Foundation..        2400

chapter xxv--Corporation for National and Community Service.        2505

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     SUBTITLE B--Regulations Relating to Public Welfare (Continued)

[[Page 5]]



       CHAPTER XII--CORPORATION FOR NATIONAL AND COMMUNITY SERVICE




  --------------------------------------------------------------------
Part                                                                Page
1200            [Reserved]

1201            Production or disclosure of official 
                    information in response to court orders, 
                    subpoenas, notices of depositions, 
                    requests for admissions, 
                    interrogatories, or in connection with 
                    Federal or State litigation.............           7
1203            Nondiscrimination in federally assisted 
                    programs--Effectuation of title VI of 
                    the Civil Rights Act of 1964............          11
1206            Grants and contracts--Suspension and 
                    termination and denial of application 
                    for refunding...........................          20
1210-1211       [Reserved]

1212

Volunteer agencies procedures for National grant volunteers [Reserved]

1214            Enforcement of nondiscrimination on the 
                    basis of handicap in programs or 
                    activities conducted by ACTION..........          31
1216            Nondisplacement of employed workers and 
                    nonimpairment of contracts for service..          36
1217-1219       [Reserved]

1220            Payment of volunteer legal expenses.........          37
1222            [Reserved]

1225            Volunteer discrimination complaint procedure          40
1226            Prohibitions on electoral and lobbying 
                    activities..............................          47
1230            New restrictions on lobbying................          50
1232            Nondiscrimination on basis of handicap in 
                    programs or activities receiving Federal 
                    financial assistance....................          62
1233            Intergovernmental review of ACTION programs.          69
1235            Locally generated contributions in Older 
                    American Volunteer Programs.............          71
1236-1299        [Reserved]

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                          PART 1200 [RESERVED]



      PART 1201_PRODUCTION OR DISCLOSURE OF OFFICIAL INFORMATION
      IN RESPONSE TO COURT ORDERS, SUBPOENAS, NOTICES OF DEPOSITIONS,
      REQUESTS FOR ADMISSIONS,INTERROGATORIES, OR IN CONNECTION WITH 
      FEDERAL OR STATE LITIGATION--Table of Contents



Sec.
1201.1 Definitions.
1201.2 Scope.
1201.3 Service of summonses and complaints.
1201.4 Service of subpoenas, court orders, and other demands or requests 
          for official information or action.
1201.5 Testimony and production of documents prohibited unless approved 
          by appropriate Corporation officials.
1201.6 Procedure when testimony or production of documents is sought.
1201.7 Procedure when response is required prior to receiving 
          instructions.
1201.8 Procedure in the event of an adverse ruling.
1201.9 Considerations in determining whether the Corporation will comply 
          with a demand or request.
1201.10 Prohibition on providing expert or opinion testimony.
1201.11 Authority.

    Authority: 42 U.S.C. 12501 et seq.

    Source: 63 FR 4598, Jan. 30, 1998, unless otherwise noted.



Sec. 1201.1  Definitions.

    (a) Corporation Employee means the Chief Executive Officer of the 
Corporation and all employees, former employees, National Civilian 
Community Corps Members (hereinafter sometimes known as ``Corps 
Members''), and VISTA Volunteers (hereinafter sometimes also known as 
``AmeriCorps*VISTA Members''), who are or were subject to the 
supervision, jurisdiction, or control of the Chief Executive Officer, 
except as the Corporation may otherwise determine in a particular case.
    (b) Litigation encompasses all pre-trial, trial, and post-trial 
stages of all judicial or administrative actions, hearings, 
investigations, or similar proceedings before courts, commissions, 
boards, or other judicial or quasi-judicial bodies or tribunals, whether 
criminal, civil, or administrative in nature.
    (c) Official Information means all information of any kind, however 
stored, that is in the custody and control of the Corporation, relates 
to information in the custody and control of the Corporation, or was 
acquired by individuals connected with the Corporation as part of their 
official status within the Corporation while such individuals are 
employed by, or serve on behalf of, the Corporation.



Sec. 1201.2  Scope.

    (a) This part states the procedures followed with respect to:
    (1) Service of summonses and complaints or other requests or demands 
directed to the Corporation or to any Corporation employee in connection 
with Federal or State litigation arising out of, or involving the 
performance of, official activities of the Corporation; and
    (2) Oral or written disclosure, in response to subpoenas, orders, or 
other requests or demands from Federal or by State judicial or quasi-
judicial authority, whether civil or criminal, or in response to 
requests for depositions, affidavits, admissions, responses to 
interrogatories, document production, or other litigation-related 
matters of:
    (i) Any material contained in the files of the Corporation; or
    (ii) Any information acquired:
    (A) When the subject of the request is currently a Corporation 
employee or was a Corporation employee; or
    (B) As part of the performance of the person's duties or by virtue 
of the person's position.
    (b) Sections 1201.3 through 1201.10 do not apply to:
    (1) Testimony or records provided in accordance with the Office of 
Personnel Management regulations implementing 5 U.S.C. 6322.
    (2) Requests for, and release of, records under the Freedom of 
Information Act, 5 U.S.C. 552, and the Privacy Act, 5 U.S.C. 552a.
    (3) Disclosures to the Office of Inspector General or requests by 
the Office of Inspector General for official information or records.
    (c) The procedures in this part apply to Corporation employees and 
official

[[Page 8]]

information within the Corporation Office of Inspector General. However, 
any determinations or other actions to be made by the General Counsel 
under this part, relating to employees or official information within 
the Office of Inspector General, shall be made by the Inspector General.

[63 FR 4598, Jan. 30, 1998, as amended at 63 FR 64199, Nov. 19, 1998]



Sec. 1201.3  Service of summonses and complaints.

    (a) Only the Corporation's General Counsel or his/her designee 
(hereinafter ``General Counsel''), is authorized to receive and accept 
summonses or complaints sought to be served upon the Corporation or its 
employees. All such documents should be delivered or addressed to 
General Counsel, Corporation for National and Community Service, 250 E 
Street SW., Washington, DC 20525.
    (b) In the event any summons or complaint is delivered to a 
Corporation Employee other than in the manner specified in this part, 
such attempted service shall be ineffective, and the recipient thereof 
shall either decline to accept the proffered service or return such 
document under cover of a written communication that refers the person 
attempting to effect service to the procedures set forth in this part.
    (c) Except as otherwise provided in Sec. 1201.4(c), the Corporation 
is not an authorized agent for service of process with respect to civil 
litigation against Corporation Employees purely in their personal, non-
official capacity. Copies of summonses or complaints directed to 
Corporation Employees in connection with legal proceedings arising out 
of the performance of official duties may, however, be served upon the 
General Counsel.

[63 FR 4598, Jan. 30, 1998, as amended at 81 FR 12600, Mar. 10, 2016]



Sec. 1201.4  Service of subpoenas, court orders, and other demands
or requests for official information or action.

    (a) Except in cases in which the Corporation is represented by legal 
counsel who have entered an appearance or otherwise given notice of 
their representation, only the General Counsel is authorized to receive 
and accept subpoenas, or other demands or requests directed to any 
component of the Corporation or Corporation Employees, whether civil or 
criminal in nature, for:
    (1) Material, including documents, contained in the files of the 
Corporation;
    (2) Information, including testimony, affidavits, declarations, 
admissions, response to interrogatories, or informal statements, 
relating to material contained in the files of the Corporation or which 
any Corporation employee acquired in the course and scope of the 
performance of official duties;
    (3) Garnishment or attachment of compensation of Corporation 
Employees; or
    (4) The performance or non-performance of any official Corporation 
duty.
    (b) In the event that any subpoena, demand, or request is sought to 
be delivered to a Corporation Employee other than in the manner 
prescribed in paragraph (a) of this section, such attempted service 
shall be ineffective. Such Corporation Employee shall, after 
consultation with the General Counsel, decline to accept the subpoena, 
and demand or request the return of it under cover of a written 
communication referring to the procedures prescribed in this part.
    (c) Except as otherwise provided in this part, the Corporation is 
not an agent for service or otherwise authorized to accept on behalf of 
Corporation Employees any subpoenas, show-cause orders, or similar 
compulsory process of federal or state courts, or requests from private 
individuals or attorneys, which are not related to the employees' 
official duties except upon the express, written authorization of the 
individual Corporation Employee to whom such demand or request is 
directed.
    (d) Acceptance of such documents by the General Counsel does not 
constitute a waiver of any defenses that might otherwise exist with 
respect to service under the Federal Rules of Civil or Criminal 
Procedure at 28 U.S.C. Appendix, Rules 4-6 or 18 USC Appendix or other 
applicable rules.

[[Page 9]]



Sec. 1201.5  Testimony and production of documents prohibited unless
approved by appropriate Corporation officials.

    (a) Unless authorized to do so by the General Counsel, no 
Corporation Employee shall, in response to a demand or request in 
connection with any litigation, whether criminal or civil, provide oral 
or written testimony by deposition, declaration, affidavit, or otherwise 
concerning any information acquired:
    (1) While such person was a Corporation Employee;
    (2) As part of the performance of that person's official duties; or
    (3) By virtue of that person's official status.
    (b) No Corporation Employee shall, in response to a demand or 
request in connection with any litigation, produce for use at such 
proceedings any document or any other material acquired as part of the 
performance of that individual's duties or by virtue of that 
individual's official status, unless authorized to do so by the General 
Counsel.



Sec. 1201.6  Procedure when testimony or production of documents is sought.

    (a) If Official Information is sought, either through testimony or 
otherwise, the party seeking such information must (except as otherwise 
required by federal law or authorized by the General Counsel) set forth 
in writing with as much specificity as possible, the nature and 
relevance of the Official Information sought. The party must identify 
the record or reasonably describe it in terms of date, format, subject 
matter, the offices originating or receiving the record, and the names 
of all persons to whom the record is known to relate. Corporation 
Employees may produce, disclose, release, comment upon, or testify 
concerning only those matters that were specified in writing and 
properly approved by the General Counsel. The General Counsel may waive 
this requirement in appropriate circumstances.
    (b) To the extent it deems necessary or appropriate, the Corporation 
may also require from the party seeking such testimony or documents a 
schedule of all reasonably foreseeable demands, including but not 
limited to the names of all current and former Corporation Employees 
from whom discovery will be sought, areas of inquiry, expected duration 
of proceedings requiring oral testimony, and identification of 
potentially relevant documents.
    (c) The General Counsel will notify the Corporation Employee and 
such other persons as circumstances may warrant of the decision 
regarding compliance with the request or demand.
    (d) The General Counsel will consult with the Department of Justice 
regarding legal representation for Corporation Employees in appropriate 
cases.



Sec. 1201.7  Procedure when response to demand is required prior to
receiving instructions.

    (a) If a response to a demand or request for Official Information 
pursuant to litigation is required before the General Counsel renders a 
decision, the Corporation will request that either a Department of 
Justice attorney or a Corporation attorney designated for the purpose:
    (1) Appear, if feasible, with the employee upon whom the demand has 
been made;
    (2) Furnish the court or other authority with a copy of the 
regulations contained in this part;
    (3) Inform the court or other authority that the demand or request 
has been or is being, as the case may be, referred for the prompt 
consideration of the General Counsel; and
    (4) Respectfully request the court or authority to stay the demand 
or request pending receipt of the requested instructions.
    (b) In the event that an immediate demand or request for production 
or disclosure is made in circumstances that would preclude the proper 
designation or appearance of a Department of Justice or Corporation 
attorney on behalf of the Corporation employee, the Corporation Employee 
shall respectfully request the court or other authority for a reasonable 
stay of proceedings for the purpose of obtaining instructions from the 
Corporation.

[[Page 10]]



Sec. 1201.8  Procedure in the event of an adverse ruling.

    If the court or other authority declines to stay the effect of the 
demand or request in response to a request made pursuant to Sec. 
1201.7, or if the court or other authority rules that the demand or 
request must be complied with irrespective of the Corporation's 
instructions not to produce the material or disclose the information 
sought, the Corporation Employee upon whom the demand or request has 
been made shall, if so directed by the General Counsel, respectfully 
decline to comply with the demand or request, citing United States ex 
rel. Touhy v. Ragen, 340 U.S. 462 (1951), and the regulations in this 
part.



Sec. 1201.9  Considerations in determining whether the Corporation
will comply with a demand or request.

    (a) In deciding whether to comply with a demand or request, 
Corporation officials and attorneys are encouraged to consider:
    (1) Whether such compliance would be unduly burdensome or otherwise 
inappropriate under the applicable rules of discovery or the rules of 
procedure governing the case or matter in which the demand arose;
    (2) Whether compliance is appropriate under the relevant substantive 
law concerning privilege or disclosure of information;
    (3) The public interest;
    (4) The need to conserve the time of Corporation Employees for the 
conduct of official business;
    (5) The need to avoid spending the time and money of the United 
States for private purposes;
    (6) The need to maintain impartiality between private litigants in 
cases where a government interest is not implicated;
    (7) Whether compliance would have an adverse effect on performance 
by the Corporation of its mission and duties; and
    (8) The need to avoid involving the Corporation in controversial 
issues not related to its mission.
    (b) Among those demands and requests in response to which compliance 
may not ordinarily be authorized are those when compliance would:
    (1) Violate a statute, a rule of procedure, a specific regulation, 
or an executive order;
    (2) Reveal information properly classified in the interest of 
national security;
    (3) Reveal confidential commercial or financial information or trade 
secrets without the owner's consent;
    (4) Reveal the internal deliberative processes of the Executive 
Branch; or
    (5) Potentially impede or prejudice an ongoing law enforcement 
investigation.



Sec. 1201.10  Prohibition on providing expert or opinion testimony.

    (a) Except as provided in this section, Corporation Employees shall 
not provide opinion or expert testimony based upon information that they 
acquired in the scope and performance of their official Corporation 
duties, except on behalf of the United States or a party represented by 
the Department of Justice.
    (b) Upon a showing by the requester of exceptional need or unique 
circumstances and that the anticipated testimony will not be adverse to 
the interests of the United States, the General Counsel, in the exercise 
of discretion, may grant special, written authorization for Corporation 
Employees to appear and testify as expert witnesses at no expense to the 
United States.
    (c) If, despite the final determination of the General Counsel, a 
court of competent jurisdiction or other appropriate authority orders 
the appearance and expert or opinion testimony of a Corporation Employee 
such individual shall immediately inform the General Counsel of such 
order. If the General Counsel determines that no further legal review of 
or challenge to the court's order will be made, the Corporation Employee 
shall comply with the order. If so directed by the General Counsel, 
however, the individual shall respectfully decline to testify.



Sec. 1201.11  Authority.

    The Corporation receives authority to change its governing 
regulations from the National and Community Service Act of 1990 as 
amended (42 U.S.C. 12501 et seq.).

[[Page 11]]



PART 1203_NONDISCRIMINATION IN FEDERALLY ASSISTED PROGRAMS_EFFECTUATION
OF TITLE VI OF THE CIVIL RIGHTS ACT OF 1964--Table of Contents



Sec.
1203.1 Purpose.
1203.2 Application of this part.
1203.3 Definitions.
1203.4 Discrimination prohibited.
1203.5 Assurances required.
1203.6 Compliance information.
1203.7 Conduct of investigations.
1203.8 Procedure for effecting compliance.
1203.9 Hearings.
1203.10 Decisions and notices.
1203.11 Judicial review.
1203.12 Effect on other regulations, forms, and instructions.

Appendix A to Part 1203--Programs to Which This Part Applies
Appendix B to Part 1203--Programs to Which This Part Applies When a 
          Primary Objective of the Federal Financial Assistance Is To 
          Provide Employment

    Authority: Sec. 602, 78 Stat. 252; 42 U.S.C. 2000d-1.

    Source: 39 FR 27322, July 26, 1974, unless otherwise noted.



Sec. 1203.1  Purpose.

    The purpose of this part is to effectuate the provisions of title VI 
of the Civil Rights Act of 1964 (hereafter referred to as title VI), to 
the end that a person in the United States shall not, on the ground of 
race, color, or national origin, be excluded from participation in, be 
denied the benefits of, or be otherwise subjected to discrimination 
under a program or activity receiving Federal financial assistance from 
ACTION.



Sec. 1203.2  Application of this part.

    (a) This part applies to each program for which Federal financial 
assistance is authorized under a law administered by ACTION, including 
the types of Federal financial assistance listed in appendix A to this 
part. It also applies to money paid, property transferred, or other 
Federal financial assistance extended after the effective date of this 
part pursuant to an application approved before that effective date. 
This part does not apply to:
    (1) Federal financial assistance by way of insurance or guaranty 
contracts;
    (2) Money paid, property transferred, or other assistance extended 
before the effective date of this part, except when the assistance was 
subject to the title VI regulations of an agency whose responsibilities 
are now exercised by ACTION;
    (3) Assistance to any individual who is the ultimate beneficiary; or
    (4) Employment practices, under a program, of an employer, 
employment agency, or labor organization, except to the extent described 
in Sec. 1203.4(c).

The fact that a type of Federal financial assistance is not listed in 
Appendix A to this part does not mean, if title VI is otherwise 
applicable, that a program is not covered. Other types of Federal 
financial assistance under statutes now in force or hereinafter enacted 
may be added to Appendix A to this part.
    (b) In a program receiving Federal financial assistance in the form, 
or for the acquisition, of real property or an interest in real 
property, to the extent that rights to space on, over, or under that 
property are included, the nondiscrimination requirement of this part 
extends to a facility located wholly or in part in that space.

[39 FR 27322, July 26, 1974, as amended at 68 FR 51387, Aug. 26, 2003]



Sec. 1203.3  Definitions.

    Unless the context requires otherwise, in this part:
    (a) Applicant means a person who submits an application, request, or 
plan required to be approved by ACTION, or by a primary recipient, as a 
condition to eligibility for Federal financial assistance, and 
``application'' means that application, request, or plan.
    (b) Facility includes all or any part of structures, equipment, or 
other real or personal property or interests therein, and the provision 
of facilities includes the construction, expansion, renovation, 
remodeling, alteration, or acquisition of facilities.
    (c) Federal financial assistance includes:
    (1) Grants and loans of Federal funds;
    (2) The grant or donation of Federal property and interests in 
property;
    (3) The detail of Federal personnel;

[[Page 12]]

    (4) The sale and lease of, and the permission to use (on other than 
a casual or transient basis), Federal property or any interest in the 
property without consideration or at a nominal consideration, or at a 
consideration which is reduced for the purpose of assisting the 
recipient, or in recognition of the public interest to be served by the 
sale or lease to the recipient; and
    (5) A Federal agreement, arrangement, or other contract which has as 
one of its purposes the provision of assistance.
    (d) Primary recipient means a recipient that is authorized or 
required to extend Federal financial assistance to another recipient.
    (e) Program or activity and program mean all of the operations of 
any entity described in paragraphs (e)(1) through (4) of this section, 
any part of which is extended Federal financial assistance:
    (1)(i) A department, agency, special purpose district, or other 
instrumentality of a State or of a local government; or
    (ii) The entity of such State or local government that distributes 
such assistance and each such department or agency (and each other State 
or local government entity) to which the assistance is extended, in the 
case of assistance to a State or local government;
    (2)(i) A college, university, or other postsecondary institution, or 
a public system of higher education; or
    (ii) A local educational agency (as defined in 20 U.S.C. 7801), 
system of vocational education, or other school system;
    (3)(i) An entire corporation, partnership, or other private 
organization, or an entire sole proprietorship--
    (A) If assistance is extended to such corporation, partnership, 
private organization, or sole proprietorship as a whole; or
    (B) Which is principally engaged in the business of providing 
education, health care, housing, social services, or parks and 
recreation; or
    (ii) The entire plant or other comparable, geographically separate 
facility to which Federal financial assistance is extended, in the case 
of any other corporation, partnership, private organization, or sole 
proprietorship; or
    (4) Any other entity which is established by two or more of the 
entities described in paragraph (e)(1), (2), or (3) of this section.
    (f) Recipient may mean any State, the District of Columbia, the 
Commonwealth of Puerto Rico, a territory or possession of the United 
States, or any political subdivision thereof, or instrumentality 
thereof, any public or private agency, institution, or organization, or 
other entity, or any individual in any State, the District of Columbia, 
the Commonwealth of Puerto Rico, or territory or possession of the 
United States, to whom Federal financial assistance is extended, 
directly or through another recipient, including any successor, 
assignee, or transferee thereof, but the term does not include any 
ultimate beneficiary.
    (g) Director means the Director of ACTION or any person to whom he 
has delegated his authority in the matter concerned.

[39 FR 27322, July 26, 1974, as amended at 68 FR 51387, Aug. 26, 2003]



Sec. 1203.4  Discrimination prohibited.

    (a) General. A person in the United States shall not, on the ground 
of race, color, or national origin be excluded from participation in, be 
denied the benefits of, or be otherwise subjected to discrimination 
under, a program to which this part applies.
    (b) Specific discriminatory actions prohibited. (1) A recipient to 
which this part applies may not, directly or through contractual or 
other arrangements, on the ground of race, color, or national origin--
    (i) Deny a person a service, financial aid, or other benefit 
provided under the program;
    (ii) Provide a service, financial aid, or other benefit to a person 
which is different, or is provided in a different manner, from that 
provided to others under the program;
    (iii) Subject a person to segregation or separate treatment in any 
matter related to his receipt of a service, financial aid, or other 
benefit under the program;
    (iv) Restrict a person in any way in the enjoyment of an advantage 
or

[[Page 13]]

privilege enjoyed by others receiving a service, financial aid, or other 
benefit under the program;
    (v) Treat a person differently from others in determining whether he 
satisfies an admission, enrollment, quota, eligibility, membership, or 
other requirement or condition which persons must meet in order to be 
provided a service, financial aid, or other benefit provided under the 
program;
    (vi) Deny a person an opportunity to participate in the program 
through the provision of services or otherwise or afford him an 
opportunity to do so which is different from that afforded others under 
the program; or
    (vii) Deny a person the opportunity to participate as a member of a 
planning or advisory body which is an integral part of the program.
    (2) A recipient, in determining the types of services, financial 
aid, or other benefits, or facilities which will be provided under a 
program or the class of persons to whom, or the situations in which, the 
services, financial aid, other benefits, or facilities will be provided 
under a program, or the class of persons to be afforded an opportunity 
to participate in a program, may not, directly or through contractual or 
other arrangements, utilize criteria or methods of administration which 
have the effect of subjecting persons to discrimination because of their 
race, color, or national origin, or have the effect of defeating or 
substantially impairing accomplishment of the objectives of the program 
with respect to individuals of a particular race, color, or national 
origin.
    (3) The enumeration of specific forms of prohibited discrimination 
in this paragraph does not limit the generality of the prohibition in 
paragraph (a) of this section.
    (4)(i) In administering a program regarding which the recipient had 
previously discriminated against persons on the ground of race, color, 
or national origin, the recipient shall take affirmative action to 
overcome the effects of prior discrimination.
    (ii) Even in the absence of prior discrimination a recipient in 
administering a program may take affirmative action to overcome the 
effect of conditions which resulted in limiting participation by persons 
of a particular race, color, or national origin.
    (c) Employment practices. (1) When a primary objective of the 
Federal financial assistance to which this part applies is to provide 
employment, a recipient or other party subject to this part shall not, 
directly or through contractual or other arrangements, subject a person 
to discrimination on the ground of race, color, or national origin in 
its employment practices under the program (including recruitment or 
recruitment advertising, hiring, firing, upgrading, promotion, demotion, 
transfer, layoff, termination, rates of pay, or other forms of 
compensation or benefits, selection for training or apprenticeship, use 
of facilities, and treatment of employees). A recipient shall take 
affirmative action to insure that applicants are employed, and employees 
are treated during employment, without regard to race, color, or 
national origin. The requirements applicable to construction employment 
under a program are those specified in or pursuant to part III of 
Executive Order 11246 or any Executive order which supersedes it.
    (2) Federal financial assistance to programs under laws funded or 
administered by ACTION which have as a primary objective the providing 
of employment include those set forth in Appendix B to this part.
    (3) Where a primary objective of the Federal financial assistance is 
not to provide employment, but discrimination on the ground of race, 
color, or national origin in the employment practices of the recipient 
tends, on the ground of race, color, or national origin, to exclude 
persons from participation in, to deny them the benefits of, or to 
subject them to discrimination under any program to which this part 
applies, the provisions of paragraph (c)(1) of this section apply to the 
employment practices of the recipient to the extent necessary to assure 
equality of opportunity to and nondiscriminatory treatment of 
beneficiaries.
    (d) In determining the site or location of facilities, a recipient 
or applicant may not make selections with the purpose or effect of 
excluding individuals from, denying them the benefits

[[Page 14]]

of, or subjecting them to discrimination under, a program to which this 
part applies, on the ground of race, color, or national origin; or with 
the purpose or effect of defeating or substantially impairing the 
accomplishment of the objectives of title VI of this part.

[39 FR 27322, July 26, 1974, as amended at 68 FR 51387, Aug. 26, 2003]



Sec. 1203.5  Assurances required.

    (a) General. (1) An application for Federal financial assistance to 
which this part applies, except an application to which paragraph (d) of 
this section applies, and every application for Federal financial 
assistance to provide a facility shall, as a condition to its approval 
and the extension of Federal financial assistance pursuant to the 
application, contain or be accompanied by, assurances that the program 
will be conducted or the facility operated in compliance with the 
requirements imposed by or pursuant to this part. Every award of Federal 
financial assistance shall require the submission of these assurances. 
In the case where the Federal financial assistance is to provide or is 
in the form of personal property, or real property or interest therein 
or structures thereon, the assurances shall obligate the recipient, or, 
in the case of a subsequent transfer, the transferee, for the period 
during which the property is used for a purpose for which the Federal 
financial assistance is extended or for another purpose involving the 
provision of similar services or benefits, or for as long as the 
recipient retains ownership or possession of the property, whichever is 
longer. In other cases, the assurances obligate the recipient for the 
period during which the Federal financial assistance is extended to the 
program. In the case where the assistance is sought for the construction 
of a facility or part of a facility, the assurances shall extend to the 
entire facility and to the facilities operated in connection therewith. 
ACTION shall specify the form of the foregoing assurances and the extent 
to which like assurances will be required of subgrantees, contractors 
and subcontractors, transferees, successors in interest, and other 
participants. The assurances shall include provisions which give the 
United States the right to seek judicial enforcement.
    (2) When Federal financial assistance is provided in the form of a 
transfer of real property, structures, or improvements thereon, or 
interest therein, from the Federal Government, the instrument effecting 
or recording the transfer shall contain a covenant running with the land 
assuring nondiscrimination for the period during which the real property 
is used for a purpose involving the provision of similar services or 
benefits. When no transfer of property of interest therein from the 
Federal Government is involved, but property is acquired or improved 
with Federal financial assistance, the recipient shall agree to include 
a covenant in any subsequent transfer of the property. When the property 
is obtained from the Federal Government, the covenant may also include a 
condition coupled with a right to be reserved by ACTION to revert title 
to the property in the event of a breach of the covenant where, in the 
discretion of ACTION, such a condition and right of reverter is 
appropriate to the statute under which the real property is obtained and 
to the nature of the grant and the grantee. In the event a transferee of 
real property proposes to mortgage or otherwise encumber the real 
property as security for financing construction of new, or improvement 
of existing, facilities on property for the purposes for which the 
property was transferred, ACTION may agree, on request of the transferee 
and if necessary to accomplish the financing, and on conditions as he 
deems appropriate, to subordinate a right of reversion to the lien of a 
mortgage or other encumbrance.
    (b) Assurances from Government agencies. In the case of an 
application from a department, agency, or office of a State or local 
government for Federal financial assistance for a specified purpose, the 
assurance required by this section shall extend to any other department, 
agency, or office of the same governmental unit if the policies of the 
other department, agency, or office will substantially affect the 
project for which Federal financial assistance is requested.

[[Page 15]]

    (c) Assurance from academic and other institutions. (1) In the case 
of an application for Federal financial assistance by an academic 
institution, the assurance required by this section extends to admission 
practices and to all other practices relating to the treatment of 
students.
    (2) The assurance required by an academic institution, detention or 
correctional facility, or any other institution or facility, relating to 
the institution's practices with respect to admission or other treatment 
of individuals as students, patients, wards, inmates, persons subject to 
control, or clients of the institution or facility or to the opportunity 
to participate in the provision of services, disposition, treatment, or 
benefits to these individuals, is applicable to the entire institution 
or facility.
    (d) Continuing Federal financial assistance. Every application by a 
State or a State agency for continuing Federal financial assistance to 
which this part applies (including the types of Federal financial 
assistance listed in Appendix A to this part) shall as a condition to 
its approval and the extension of Federal financial assistance pursuant 
to the application:
    (1) Contain or be accompanied by a statement that the program is 
(or, in the case of a new program, will be) conducted in compliance with 
the requirements imposed by or pursuant to this part, and
    (2) Provide or be accompanied by provision for methods of 
administration for the program as are found by ACTION to give reasonable 
guarantee that the applicant and all recipients of Federal financial 
assistance under the program will comply with the requirements imposed 
by or pursuant to this part.

(Approved by the Office of Management and Budget under control number 
3001-0016, paragraph (a)(1))

[39 FR 27322, July 26, 1974, as amended at 47 FR 3553, Jan. 26, 1982; 68 
FR 51387, Aug. 26, 2003]



Sec. 1203.6  Compliance information.

    (a) Cooperation and assistance. ACTION, to the fullest extent 
practicable, shall seek the cooperation of recipients in obtaining 
compliance with this part and shall provide assistance and guidance to 
recipients to help them comply voluntarily with this part.
    (b) Compliance reports. Each recipient shall keep records and submit 
to ACTION timely, complete, and accurate compliance reports at the 
times, and in the form and containing the information ACTION may 
determine necessary to enable it to ascertain whether the recipient has 
complied or is complying with this part. In the case in which a primary 
recipient extends Federal financial assistance to other recipients, the 
other recipients shall also submit compliance reports to the primary 
recipient as may be necessary to enable the primary recipient to carry 
out its obligations under this part. In general, recipients should have 
available for ACTION racial and ethnic data showing the extent to which 
members of minority groups are beneficiaries of federally assisted 
programs.
    (c) Access to sources of information. Each recipient shall permit 
access by ACTION during normal business hours to its books, records, 
accounts, and other sources of information, and its facilities as may be 
pertinent to ascertain compliance with this part. When information 
required of a recipient is in the exclusive possession of an other 
agency, institution, or person and this agency, institution, or person 
fails or refuses to furnish this information, the recipient shall so 
certify in its report and shall set forth what efforts it has made to 
obtain the information.
    (d) Information to beneficiaries and participants. Each recipient 
shall make available to participants, beneficiaries, and other 
interested persons the information regarding the provisions of this part 
and its applicability to the program for which the recipient received 
Federal financial assistance, and make this information available to 
them in the manner, as ACTION finds necessary, to apprise the persons of 
the protections against discrimination assured them by title VI and this 
part.

[39 FR 27322, July 26, 1974, as amended at 68 FR 51387, Aug. 26, 2003]



Sec. 1203.7  Conduct of investigations.

    (a) Periodic compliance reviews. ACTION may from time to time review 
the practices of recipients to determine

[[Page 16]]

whether they are complying with this part.
    (b) Complaints. Any person who believes himself or any specific 
class of persons to be subjected to discrimination prohibited by this 
part may by himself or by a representative file with ACTION a written 
complaint. A complaint shall be filed not later than 180 days after the 
date of the alleged discrimination, unless the time for filing is 
extended by ACTION.
    (c) Investigations. ACTION will make a prompt investigation whenever 
a compliance review, report, complaint, or other information indicates a 
possible failure to comply with this part. The investigation will 
include, when appropriate, a review of the pertinent practices and 
policies of the recipient, the circumstances under which the possible 
noncompliance with this part occurred, and other factors relevant to a 
determination as to whether the recipient has failed to comply with this 
part.
    (d) Resolution of matters. (1) If an investigation pursuant to 
paragraph (c) of this section indicates a failure to comply with this 
part, ACTION will so inform the recipient and the matter will be 
resolved by voluntary means whenever possible. If it has been determined 
that the matter cannot be resolved by voluntary means, action will be 
taken as provided for in Sec. 1203.8.
    (2) If an investigation does not warrant action pursuant to 
paragraph (d)(1) of this section, ACTION will so inform, in writing, the 
recipient and the complainant, if any.
    (e) Intimidatory or retaliatory acts prohibited. A recipient or 
other person shall not intimidate, threaten, coerce, or discriminate 
against an individual for the purpose of interfering with a right or 
privilege secured by section 601 of title VI of this part, or because he 
has made a complaint, testified, assisted, or participated in any manner 
in an investigation, proceeding, or hearing under this part. The 
identity of complainants shall be kept confidential, except to the 
extent necessary to carry out the purposes of this part, including the 
conduct of an investigation, hearing, or judicial proceeding arising 
thereunder.



Sec. 1203.8  Procedure for effecting compliance.

    (a) General. (1) If there appears to be a failure or threatened 
failure to comply with this part, and if the noncompliance or threatened 
noncompliance cannot be corrected by informal means, compliance with 
this part may be effected by the suspension or termination of or refusal 
to grant or to continue Federal financial assistance or by other means 
authorized by law.
    (2) Other means may include, but are not limited to:
    (i) A reference to the Department of Justice with a recommendation 
that appropriate proceedings be brought to enforce the rights of the 
United States under a law of the United States (including other titles 
of the Civil Rights Act of 1964) or an assurance or other contractual 
undertaking, and
    (ii) An applicable proceeding under State or local law.
    (b) Noncompliance with Sec. 1203.5. If an applicant fails or 
refuses to furnish an assurance required under Sec. 1203.5 or otherwise 
fails or refuses to comply with a requirement imposed by or pursuant to 
that section, Federal financial assistance may be refused in accordance 
with the procedures of paragraph (c) of this section. ACTION shall not 
be required to provide assistance in that case during the pendency of 
the administrative proceedings under this paragraph. Subject, however, 
to Sec. 1203.12, ACTION shall continue assistance during the pendency 
of the proceedings where the assistance is due and payable pursuant to 
an application approved prior to the effective date of this part.
    (c) Termination of or refusal to grant or to continue Federal 
financial assistance. An order suspending, terminating, or refusing to 
grant or to continue Federal financial assistance shall not become 
effective until--
    (1) ACTION has advised the applicant or recipient of his failure to 
comply and has determined that compliance cannot be secured by informal 
voluntary means;
    (2) There has been an express finding on the record, after 
opportunity for hearing, of a failure by the applicant or recipient to 
comply with a requirement imposed by or pursuant to this part;

[[Page 17]]

    (3) The action has been approved by the Director pursuant to Sec. 
1203.10(e); and
    (4) The expiration of 30 days after the Director has filed with the 
committee of the House and the committee of the Senate having 
legislative jurisdiction over the program involved, a full written 
report of the circumstances and the grounds for the action.

An action to suspend or terminate or refuse to grant or to continue 
Federal financial assistance shall be limited to the particular 
political entity, or part thereof, or other applicant or recipient as to 
whom a finding has been made and shall be limited in its effect to the 
particular program, or part thereof, in which the noncompliance has been 
so found.
    (d) Other means authorized by law. An action to effect compliance 
with title VI by other means authorized by law shall not be taken by 
ACTION until--
    (1) ACTION has determined that compliance cannot be secured by 
voluntary means;
    (2) The recipient or other person has been notified of its failure 
to comply and of the action to be taken to effect compliance; and
    (3) The expiration of at least 10 days from the mailing of a notice 
to the recipient or person. During this period of at least 10 days, 
additional efforts shall be made to persuade the recipient or other 
person to comply with the regulation and to take corrective action as 
may be appropriate.



Sec. 1203.9  Hearings.

    (a) Opportunity for hearing. When an opportunity for a hearing is 
required by Sec. 1203.8(c), reasonable notice shall be given by 
registered or certified mail, return receipt requested, to the affected 
applicant or recipient. This notice shall advise the applicant or 
recipient of the action proposed to be taken, the specific provision 
under which the proposed action against it is to be taken, and the 
matters of fact or law asserted as the basis for this action, and 
either:
    (1) Fix a date not less than 20 days after the date of notice within 
which the applicant or recipient may request of ACTION that the matter 
be scheduled for hearing; or
    (2) Advise the applicant or recipient that the matter in question 
has been set down for hearing at a stated time and place. The time and 
place so fixed shall be reasonable and subject to change for cause. The 
complainant, if any, shall be advised of the time and place of the 
hearing. An applicant or recipient may waive a hearing and submit 
written information and argument for the record. The failure of an 
applicant or recipient to request a hearing under this paragraph or to 
appear at a hearing for which a date has been set is deemed to be a 
waiver of the right to a hearing under section 602 of title VI and Sec. 
1203.8(c) and consent to the making of a decision on the basis of the 
information available.
    (b) Time and place of hearing. Hearings shall be held at the offices 
of ACTION in Washington, DC, at a time fixed by ACTION unless it 
determines that the convenience of the applicant or recipient or of 
ACTION requires that another place be selected. Hearings shall be held 
before the Director, or at his discretion, before a hearing examiner 
appointed in accordance with section 3105 of title 5, United States 
Code, or detailed under section 3344 of title 5, United States Code.
    (c) Right to counsel. In all proceedings under this section, the 
applicant or recipient and ACTION have the right to be represented by 
counsel.
    (d) Procedures, evidence, and record. (1) The hearing, decision, and 
an administrative review thereof shall be conducted in conformity with 
sections 554 through 557 of title 5, United States Code, and in 
accordance with the rules of procedure as are proper (and not 
inconsistent with this section) relating to the conduct of the hearing, 
giving of notices subsequent to those provided for in paragraph (a) of 
this section, taking of testimony, exhibits, arguments, and briefs, 
requests for findings, and other related matters. Both ACTION and the 
applicant or recipient are entitled to introduce relevant evidence on 
the issues as stated in the notice for hearing or as determined by the 
officer conducting the hearing at the outset of or during the hearing.
    (2) Technical rules of evidence do not apply to hearings conducted 
pursuant

[[Page 18]]

to this part, but rules or principles designed to assure production of 
the most credible evidence available and to subject testimony to test by 
cross-examination shall be applied where determined reasonably necessary 
by the officer conducting the hearing. The hearing officer may exclude 
irrelevant, immaterial, or unduly repetitious evidence. Documents and 
other evidence offered or taken for the record shall be open to 
examination by the parties and opportunity shall be given to refute 
facts and arguments advanced on either side of the issues. A transcript 
shall be made of the oral evidence except to the extent the substance 
thereof is stipulated for the record. Decisions shall be based on the 
hearing record and written findings shall be made.
    (e) Consolidated or joint hearings. In cases in which the same or 
related facts are asserted to constitute noncompliance with this part 
with respect to two or more Federal statutes, authorities, or other 
means by which Federal financial assistance is extended and to which 
this part applies, or noncompliance with this part and the regulations 
of one or more other Federal departments or agencies issued under title 
VI, ACTION may, by agreement with the other departments or agencies, 
when applicable, provide for the conduct of consolidated or joint 
hearings, and for the application to these hearings of rules or 
procedures not inconsistent with this part. Final decisions in these 
cases, insofar as this regulation is concerned, shall be made in 
accordance with Sec. 1203.10.

[39 FR 27322, July 26, 1974, as amended at 68 FR 51387, Aug. 26, 2003]



Sec. 1203.10  Decisions and notices.

    (a) Procedure on decisions by hearing examiner. If the hearing is 
held by a hearing examiner, the hearing examiner shall either make an 
initial decision, if so authorized, or certify the entire record 
including his recommended findings and proposed decision to the Director 
for a final decision, and a copy of the initial decision or 
certification shall be mailed to the applicant or recipient. When the 
initial decision is made by the hearing examiner, the applicant or 
recipient may, within 30 days after the mailing of a notice of initial 
decision, file with the Director his exceptions to the initial decision, 
with his reasons therefor. In the absence of exceptions, the Director 
may, on his own motion, within 45 days after the initial decision, serve 
on the applicant or recipient a notice that he will review the decision. 
On the filing of the exceptions or of notice of review, the Director 
shall review the initial decision and issue his own decision thereon 
including the reasons therefor. In the absence of either exceptions or a 
notice of review the initial decision, subject to paragraph (e) of this 
section, shall constitute the final decision of the Director.
    (b) Decisions on record or review by the Director. When a record is 
certified to the Director for decision or the Director reviews the 
decision of a hearing examiner pursuant to paragraph (a) of this 
section, or when the Director conducts the hearing, the applicant or 
recipient shall be given reasonable opportunity to file with it briefs 
or other written statements of the recipient's contentions, and a 
written copy of the final decision of the Director will be sent to the 
applicant or recipient and to the complainant, if any.
    (c) Decisions on record where a hearing is waived. When a hearing is 
waived pursuant to Sec. 1203.9, a decision shall be made by ACTION on 
the record and a written copy of the decision shall be sent to the 
applicant or recipient, and to the complainant, if any.
    (d) Rulings required. Each decision of a hearing examiner or the 
Director shall set forth a ruling on each finding, conclusion, or 
exception presented, and shall identify the requirement or requirements 
imposed by or pursuant to this part with which it is found that the 
applicant or recipient has failed to comply.
    (e) Approval by ACTION. A final decision by an official of ACTION 
other than by the Director, which provides for the suspension or 
termination of, or the refusal to grant or continue Federal financial 
assistance, or the imposition of any other sanction available under this 
part or title VI, shall

[[Page 19]]

promptly be transmitted to the Director, who may approve the decision, 
vacate it, or remit or mitigate a sanction imposed.
    (f) Content of orders. The final decision may provide for suspension 
or termination of, or refusal to grant or continue Federal financial 
assistance, in whole or in part, to which this regulation applies, and 
may contain the terms, conditions, and other provisions as are 
consistent with and will effectuate the purposes of title VI and this 
part, including provisions designed to assure that Federal financial 
assistance to which this regulation applies will not thereafter be 
extended to the applicant or recipient determined by the decision to be 
in default in its performance of an assurance given by it under this 
part, or to have otherwise failed to comply with this part, unless and 
until it corrects its noncompliance and satisfies ACTION that it will 
fully comply with this part.
    (g) Post-termination proceedings. (1) An applicant or recipient 
adversely affected by an order issued under paragraph (f) of this 
section shall be restored to full eligibility to receive Federal 
financial assistance if it satisfies the terms and conditions of the 
order for eligibility, or if it brings itself into compliance with this 
part and provides reasonable assurance that it will fully comply with 
this part.
    (2) An applicant or recipient adversely affected by an order entered 
pursuant to paragraph (f) of this section may at any time request ACTION 
to restore fully its eligibility to receive Federal financial 
assistance. A request shall be supported by information showing that the 
applicant or recipient has met the requirements of paragraph (g)(1) of 
this section. If ACTION determines that those requirements have been 
satisfied, it shall restore the eligibility.
    (3) If ACTION denies a request, the applicant or recipient may 
submit a request for a hearing in writing, specifying why it believes 
ACTION is in error. The applicant or recipient shall be given an 
expeditious hearing, with a decision on the record in accordance with 
the rules or procedures issued by ACTION. The applicant or recipient 
shall be restored to eligibility if it proves at the hearing that it 
satisfied the requirements of paragraph (g)(1) of this section. While 
proceedings under this paragraph are pending, the sanctions imposed by 
the order issued under paragraph (f) of this section remain in effect.

[39 FR 27322, July 26, 1974, as amended at 68 FR 51387, Aug. 26, 2003]



Sec. 1203.11  Judicial review.

    Action taken pursuant to section 602 of title VI is subject to 
judicial review as provided in section 603 of title VI.



Sec. 1203.12  Effect on other regulations, forms, and instructions.

    (a) Effect on other regulations. Regulations, orders, or like 
directions issued before the effective date of this part by ACTION which 
impose requirements designed to prohibit discrimination against 
individuals on the ground of race, color, or national origin to which 
this part applies, and which authorizes the suspension or termination of 
or refusal to grant or to continue Federal financial assistance to an 
applicant for or recipient of assistance under a program for failure to 
comply with the requirements, are superseded to the extent that 
discrimination is prohibited by this part, except that nothing in this 
part relieves a person of an obligation assumed or imposed under a 
superseded regulation, order, instruction, or like direction, before the 
effective date of this part. This part does not supersede any of the 
following (including future amendments thereof):
    (1) Executive Order 11246 (3 CFR, 1965 Supp.) and regulations issued 
there under or
    (2) Any other orders, regulations, or instructions, insofar as these 
orders, regulations, or instructions prohibit discrimination on the 
ground of race, color, or national origin in a program or situation to 
which this part is inapplicable, or prohibit discrimination on any other 
ground.
    (b) Forms and instructions. ACTION shall issue and promptly make 
available to all interested persons forms and detailed instructions and 
procedures for effectuating this part as applied to programs to which 
this part applies, and for which it is responsible.

[[Page 20]]

    (c) Supervision and coordination. ACTION may from time to time 
assign to officials of ACTION, or to officials of other departments or 
agencies of the Government with the consent of the departments or 
agencies, responsibilities in connection with the effectuation of the 
purposes of title VI and this part (other than responsibilities for 
final decision as provided in Sec. 1203.10), including the achievement 
of effective coordination and maximum uniformity within ACTION and 
within the executive branch in the application of title VI and this part 
to similar programs and in similar situations. An action taken, 
determination made, or requirement imposed by an official of another 
department or agency acting pursuant to an assignment of responsibility 
under this paragraph shall have the same effect as though the action had 
been taken by ACTION.

[39 FR 27322, July 26, 1974, as amended at 68 FR 51387, Aug. 26, 2003]



Sec. Appendix A to Part 1203--Federal Financial Assistance to Which This 
                              Part Applies

    1. Grants for the development or operation of retired senior 
volunteer programs pursuant to section 601 of the Older Americans Act of 
1965, as amended (42 U.S.C. 3044).
    2. Grants for the development and operation of foster grandparents 
projects pursuant to section 611 of the Older Americans Act of 1965, as 
amended (42 U.S.C. 3044b).



Sec. Appendix B to Part 1203--Federal Financial Assistance to Which This 
     Part Applies When a Primary Objective of the Federal Financial 
                   Assistance Is To Provide Employment

    1. Grants for the development or operation of retired senior 
volunteer programs pursuant to section 601 of the Older Americans Act of 
1965, as amended (42 U.S.C. 3044).
    2. Grants for the development and operation of foster grandparents 
projects pursuant to section 611 of the Older Americans Act of 1965, as 
amended (42 U.S.C. 3044b).



PART 1206_GRANTS AND CONTRACTS_SUSPENSION AND TERMINATION AND DENIAL
OF APPLICATION FOR REFUNDING--Table of Contents



           Subpart A_Suspension and Termination of Assistance

Sec.
1206.1-1 Purpose and scope.
1206.1-2 Application of this part.
1206.1-3 Definitions.
1206.1-4 Suspension.
1206.1-5 Termination.
1206.1-6 Time and place of termination hearings.
1206.1-7 Termination hearing procedures.
1206.1-8 Decisions and notices regarding termination.
1206.1-9 Right to counsel; travel expenses.
1206.1-10 Modification of procedures by consent.
1206.1-11 Other remedies.

              Subpart B_Denial of Application for Refunding

1206.2-1 Applicability of this subpart.
1206.2-2 Purpose.
1206.2-3 Definitions.
1206.2-4 Procedures.
1206.2-5 Right to counsel.

    Authority: 42 U.S.C. 5052.

    Source: 69 FR 19110, Apr. 12, 2004, unless otherwise noted.



           Subpart A_Suspension and Termination of Assistance



Sec. 1206.1-1  Purpose and scope.

    (a) This subpart establishes rules and review procedures for the 
suspension and termination of assistance of National Senior Service 
Corps grants of assistance provided by the Corporation for National and 
Community Service pursuant to sections of title II of the Domestic 
Volunteer Service Act of 1973, Public Law 93-113, 87 Stat. 413 
(hereinafter the DVSA) because a recipient failed to materially comply 
with the terms and conditions of any grant or contract providing 
assistance under these sections of the DVSA, including applicable laws, 
regulations, issued program guidelines, instructions, grant conditions 
or approved work programs.
    (b) However, this subpart shall not apply to any administrative 
action of

[[Page 21]]

the Corporation for National and Community Service based upon any 
violation, or alleged violation, of title VI of the Civil Rights Act of 
1964 and sections 417(a) and (b) of Pub. L. 93-113 relating to 
nondiscrimination. In the case of any such violation or alleged 
violation other provisions of this chapter shall apply.

[69 FR 19110, Apr. 12, 2004, as amended at 80 FR 63457, Oct. 20, 2015]



Sec. 1206.1-2  Application of this part.

    This subpart applies to programs authorized under title II of the 
DVSA.

[80 FR 63457, Oct. 20, 2015]



Sec. 1206.1-3  Definitions.

    As used in this subpart--
    (a) The term Corporation means the Corporation for National and 
Community Service established pursuant to 42 U.S.C. 12651 and includes 
each Corporation State Office and Service Center.
    (b) The term CEO means the Chief Executive Officer of the 
Corporation.
    (c) The term responsible Corporation official means the CEO, Chief 
Financial Officer, the Director of the National Senior Service Corps 
programs, the appropriate Service Center Director and any Corporation 
for National and Community Service (CNCS) Headquarters or State office 
official who is authorized to make the grant or assistance in question. 
In addition to the foregoing officials, in the case of the suspension 
proceedings described in Sec. 1206.1-4, the term ``responsible 
Corporation official'' shall also include a designee of a CNCS official 
who is authorized to make the grant of assistance in question.
    (d) The term assistance means assistance under title II of the DVSA 
in the form of grants or contracts involving Federal funds for the 
administration for which the Director of the National Senior Service 
Corps programs has responsibility.
    (e) The term recipient means a public or private agency, institution 
or organization or a State or other political jurisdiction which has 
received assistance under title II of the DVSA. The term ``recipient'' 
does not include individuals who ultimately receive benefits under any 
DVSA program of assistance or National Senior Service Corps volunteers 
participating in any program.
    (f) The term agency means a public or private agency, institution, 
or organization or a State or other political jurisdiction with which 
the recipient has entered into an arrangement, contract or agreement to 
assist in its carrying out the development, conduct and administration 
of part of a project or program assisted under title II of the DVSA.
    (g) The term party in the case of a termination hearing means the 
Corporation, the recipient concerned, and any other agency or 
organization which has a right or which has been granted permission by 
the presiding officer to participate in a hearing concerning termination 
of financial assistance to the recipient pursuant to Sec. 1206.1-5(e).
    (h) The term termination means any action permanently terminating or 
curtailing assistance to all or any part of a program prior to the time 
that such assistance is concluded by the grant or contract terms and 
conditions, but does not include the refusal to provide new or 
additional assistance.
    (i) The term suspension means any action temporarily suspending or 
curtailing assistance in whole or in part, to all or any part of a 
program, prior to the time that such assistance is concluded by the 
grant or contract terms and conditions, but does not include the refusal 
to provide new or additional assistance.

[69 FR 19110, Apr. 12, 2004, as amended at 80 FR 63457, Oct. 20, 2015]



Sec. 1206.1-4  Suspension.

    (a) General. The responsible Corporation official may suspend 
financial assistance to a recipient in whole or in part for a material 
failure or threatened material failure to comply with any requirement 
stated in Sec. 1206.1-1. Such suspension shall be pursuant to notice 
and opportunity to show cause why assistance should not be suspended as 
provided in paragraph (b) of this section. However, in emergency cases, 
where the responsible Corporation official determines summary action is 
appropriate, the alternative summary

[[Page 22]]

procedure of paragraph (c) of this section shall be followed.
    (b) Suspension on notice. (1) Except as provided in paragraph (c) of 
this section, the procedure for suspension shall be on notice of intent 
to suspend as hereinafter provided.
    (2) The responsible Corporation official shall notify the recipient 
by letter or by telegram that the Corporation intends to suspend 
assistance in whole or in part unless good cause is shown why assistance 
should not be suspended. In such letter or telegram the responsible 
Corporation official shall specify the grounds for the proposed 
suspension and the proposed effective date of the suspension.
    (3) The responsible Corporation official shall also inform the 
recipient of its right to submit written material in opposition to the 
intended suspension and of its right to request an informal meeting at 
which the recipient may respond and attempt to show why such suspension 
should not occur. The period of time within which the recipient may 
submit such written material or request the informal meeting shall be 
established by the responsible Corporation official in the notice of 
intent to suspend. However, in no event shall the period of time within 
which the recipient must submit written material or request such a 
meeting be less than 5 days after the notice of intent to suspend 
assistance has been sent. If the recipient requests a meeting, the 
responsible Corporation official shall fix a time and place for the 
meeting, which shall not be less than 5 days after the recipient's 
request is received by the Corporation.
    (4) In lieu of the provisions of paragraph (b)(3) of this section 
dealing with the right of the recipient to request an informal meeting, 
the responsible Corporation official may on his own initiative establish 
a time and place for such a meeting and notify the recipient in writing 
or by telegram. However, in no event shall such a meeting be scheduled 
less than seven days after the notice of intent to suspend assistance is 
sent to the recipient.
    (5) The responsible Corporation official may in his discretion 
extend the period of time or date referred to in the previous paragraphs 
of this section and shall notify the recipient in writing or by telegram 
of any such extension.
    (6) At the time the responsible Corporation official sends the 
notification referred to in paragraphs (b) (2), (3), and (4) of this 
section to the recipient, he shall also send a copy of it to any agency 
whose activities or failures to act have substantially contributed to 
the proposed suspension, and shall inform such agency that it is 
entitled to submit written material or to participate in the informal 
meeting referred to in paragraphs (b) (3) and (4) of this section. In 
addition the responsible Corporation official may in his discretion give 
such notice to any other agency.
    (7) Within 3 days of receipt of the notice referred to in paragraphs 
(b) (2), (3), and (4) of this section, the recipient shall send a copy 
of such notice and a copy of these regulations to all agencies which 
would be financially affected by the proposed suspension action. Any 
agency that wishes to submit written material may do so within the time 
stated in the notice. Any agency that wishes to participate in the 
informal meeting with the responsible Corporation official contemplated 
herein may request permission to do so from the responsible Corporation 
official, who may in his discretion grant or deny such permission. In 
acting upon any such request from an agency, the responsible Corporation 
official shall take into account the effect of the proposed suspension 
on the particular agency, the extent to which the meeting would become 
unduly complicated as a result of granting such permission, and the 
extent to which the interests of the agency requesting such permission 
appear to be adequately represented by other participants.
    (8) In the notice of intent to suspend assistance the responsible 
Corporation official shall invite voluntary action to adequately correct 
the deficiency which led to the initiation of the suspension proceeding.
    (9) The responsible Corporation official shall consider any timely 
material presented to him in writing, any material presented to him 
during the course of the informal meeting provided for in paragraphs 
(b)(3) and (4) of this section

[[Page 23]]

as well as any showing that the recipient has adequately corrected the 
deficiency which led to the initiation of suspension proceedings. If 
after considering the material presented to him the responsible 
Corporation official concludes the recipient has failed to show cause 
why assistance should not be suspended, he may suspend assistance in 
whole or in part and under such terms and conditions as he shall 
specify.
    (10) Notice of such suspension shall be promptly transmitted to the 
recipient and shall become effective upon delivery. Suspension shall not 
exceed 30 days unless during such period of time termination proceedings 
are initiated in accordance with Sec. 1206.1-5, or unless the 
responsible Corporation official and the recipient agree to a 
continuation of the suspension for an additional period of time. If 
termination proceedings are initiated, the suspension of assistance 
shall remain in full force and effect until such proceedings have been 
fully concluded.
    (11) During a period of suspension no new expenditures shall be made 
and no new obligations shall be incurred in connection with the 
suspended program except as specifically authorized in writing by the 
responsible Corporation official. Expenditures to fulfill legally 
enforceable commitments made prior to the notice of suspension, in good 
faith and in accordance with the recipient's approved work program, and 
not in anticipation of suspension or termination, shall not be 
considered new expenditures. However, funds shall not be recognized as 
committed solely because the recipient has obligated them by contract or 
otherwise to an agency.
    Note: Willful misapplication of funds may violate Federal criminal 
statutes.
    (12) The responsible Corporation official may in his discretion 
modify the terms, conditions and nature of the suspension or rescind the 
suspension action at any time on his own initiative or upon a showing 
satisfactory to him that the recipient had adequately corrected the 
deficiency which led to the suspension and that repetition is not 
threatened. Suspensions partly or fully rescinded may, in the discretion 
of the responsible Corporation official be reimposed with or without 
further proceedings: Provided however, That the total time of suspension 
may not exceed 30 days unless termination proceedings are initiated in 
accordance with Sec. 1206.1-5 or unless the responsible Corporation 
official and the recipient agree to a continuation of the suspension for 
an additional period of time. If termination proceedings are initiated, 
the suspension of assistance shall remain in full force and effect until 
such proceedings have been fully concluded.
    (c) Summary suspension. (1) The responsible Corporation official may 
suspend assistance without the prior notice and opportunity to show 
cause provided in paragraph (b) of this section if he determines in his 
discretion that immediate suspension is necessary because of a serious 
risk of:
    (i) Substantial injury to or loss of project funds or property, or
    (ii) Violation of a Federal, State or local criminal statute, or
    (iii) Violation of section 403 of the DVSA or of Corporation rules, 
regulations, guidelines and instructions implementing this section of 
the DVSA, and that such risk is sufficiently serious to outweigh the 
general policy in favor of advance notice and opportunity to show cause.
    (2) Notice of summary suspension shall be given to the recipient by 
letter or by telegram, shall become effective upon delivery to the 
recipient, and shall specifically advise the recipient of the effective 
date of the suspension and the extent, terms, and condition of any 
partial suspension. The notice shall also forbid the recipient to make 
any new expenditures or incur any new obligations in connection with the 
suspended portion of the program. Expenditures to fulfill legally 
enforceable commitments made prior to the notice of suspension, in good 
faith and in accordance with the recipient's approved work program, and 
not in anticipation of suspension or termination, shall not be 
considered new expenditures. However, funds shall not be recognized as 
committed by a recipient solely because the recipient obligated them by 
contract or otherwise to an agency. (See note under paragraph (b)(11) of 
this section.)

[[Page 24]]

    (3) In the notice of summary suspension the responsible Corporation 
official shall advise the recipient that it may request the Corporation 
to provide it with an opportunity to show cause why the summary 
suspension should be rescinded. If the recipient requests such an 
opportunity, the responsible Corporation official shall immediately 
inform the recipient in writing of the specific grounds for the 
suspension and shall within 7 days after receiving such request from the 
recipient hold an informal meeting at which the recipient may show cause 
why the summary suspension should be rescinded. Notwithstanding the 
provisions of this paragraph, the responsible Corporation official may 
proceed to initiate termination proceedings at any time even though 
assistance to the recipient has been suspended in whole or in part. In 
the event that termination proceedings are initiated, the responsible 
Corporation official shall nevertheless afford the recipient, if it so 
requests, an opportunity to show cause why suspension should be 
rescinded pending the outcome of the termination proceedings.
    (4) Copies of the notice of summary suspension shall be furnished by 
the recipient to agencies in the same manner as notices of intent to 
suspend as set forth in paragraphs (b)(6), (7), and (8) of this section. 
Agencies may submit written material to the responsible Corporation 
official or to participate in the informal meeting as in the case of 
intended suspension proceedings set forth in paragraphs (b)(6) and (7) 
of this section.
    (5) The effective period of a summary suspension of assistance may 
not exceed 30 days unless termination proceedings are initiated in 
accordance with Sec. 1206.1-5, or unless the parties agree to a 
continuation of summary suspension for an additional period of time, or 
unless the recipient, in accordance with paragraph (c)(3) of this 
section, requests an opportunity to show cause why the summary 
suspension should be rescinded.
    (6) If the recipient requests an opportunity to show cause why a 
summary suspension action should be rescinded the suspension of 
assistance shall continue in effect until the recipient has been 
afforded such opportunity and a decision has been made. Such a decision 
shall be made within 5 days after the conclusion of the informal meeting 
referred to in paragraph (c)(3) of this section. If the responsible 
Corporation official concludes, after considering all material submitted 
to him, that the recipient has failed to show cause why the suspension 
should be rescinded, the responsible Corporation official may continue 
the suspension in effect for an additional 7 days: Provided however, 
That if termination proceedings are initiated, the summary suspension of 
assistance shall remain in full force and effect until all termination 
proceedings have been fully concluded.



Sec. 1206.1-5  Termination.

    (a) If the responsible Corporation official believes that an alleged 
failure to comply with any requirement stated in Sec. 1206.1-1 may be 
sufficiently serious to warrant termination of assistance, whether or 
not assistance has been suspended, he shall so notify the recipient by 
letter or telegram. The notice shall state that there appear to be 
grounds which warrant terminating the assistance and shall set forth the 
specific reasons therefore. If the reasons result in whole or 
substantial part from the activities of an agency other than the 
grantee, the notice shall identify that agency. The notice shall also 
advise the recipient that the matter has been set down for hearing at a 
stated time and place, in accordance with Sec. 1206.1-6. In the 
alternative the notice shall advise the recipient of its right to 
request a hearing and shall fix a period of time which shall not be less 
than 10 days in which the recipient may request such a hearing.
    (b) Termination hearings shall be conducted in accordance with the 
provision of Sec. Sec. 1206.1-7 and 1206.1-8. They shall be scheduled 
for the earliest practicable date, but not later than 30 days after a 
recipient has requested such a hearing in writing or by telegram. 
Consideration shall be given to a request by a recipient to advance or 
postpone the date of a hearing scheduled by the Corporation. Any such 
hearing shall afford the recipient a full and fair opportunity to 
demonstrate that it is in

[[Page 25]]

compliance with requirements specified in Sec. 1206.1-1. In any 
termination hearing, the Corporation shall have the burden of justifying 
the proposed termination action. However, if the basis of the proposed 
termination is the failure of a recipient to take action required by 
law, regulation, or other requirement specified in Sec. 1206.1-1, the 
recipient shall have the burden of proving that such action was timely 
taken.
    (c) If a recipient requests the Corporation to hold a hearing in 
accordance with paragraph (a) of this section, it shall send a copy of 
its request for such a hearing to all agencies which would be 
financially affected by the termination of assistance and to each agency 
identified in the notice pursuant to paragraph (a) of this section. This 
material shall be sent to these agencies at the same time the 
recipient's request is made to the Corporation. The recipient shall 
promptly send to the Corporation a list of the agencies to which it has 
sent such material and the date on which it was sent.
    (d) If the responsible Corporation official pursuant to paragraph 
(a) of this section informs a recipient that a proposed termination 
action has been set for hearing, the recipient shall within 5 days of 
its receipt of this notice send a copy of it to all agencies which would 
be financially affected by the termination and to each agency identified 
in the notice pursuant to paragraph (a) of this section. The recipient 
shall send the responsible Corporation official a list of all agencies 
notified and the date of notification.
    (e) If the responsible Corporation official has initiated 
termination proceedings because of the activities of an agency, that 
agency may participate in the hearing as a matter of right. Any other 
agency, person, or organization that wishes to participate in the 
hearing may, in accordance with Sec. 1206.1-7(d), request permission to 
do so from the presiding officer of the hearing. Such participation 
shall not, without the consent of the Corporation and the recipient, 
alter the time limitations for the delivery of papers or other 
procedures set forth in this section.
    (f) The results of the proceeding and any subsequent measure taken 
by the Corporation pursuant to this part shall be fully binding upon the 
recipient and all agencies whether or not they actually participated in 
the hearing.
    (g) A recipient may waive a hearing by notice to the responsible 
Corporation official in writing and submit written information and 
argument for the record. Such material shall be submitted to the 
responsible Corporation official within a reasonable period of time to 
be fixed by him upon the request of the recipient. The failure of a 
recipient to request a hearing, or to appear at a hearing for which a 
date has been set, unless excused for good cause, shall be deemed a 
waiver of the right to a hearing and consent to the making of a decision 
on the basis of such information as is then in the possession of the 
Corporation.
    (h) The responsible Corporation official may attempt, either 
personally or through a representative, to resolve the issues in dispute 
by informal means prior to the date of any applicable hearing.



Sec. 1206.1-6  Time and place of termination hearings.

    The termination hearing shall be held in Washington, DC, or in the 
appropriate Service Center or Corporation State Office, at a time and 
place fixed by the responsible Corporation official unless he determines 
that for the convenience of the Corporation, or of the parties or their 
representatives, requires that another place be selected.



Sec. 1206.1-7  Termination hearing procedures.

    (a) General. The termination hearing, decision, and any review shall 
be conducted in accordance with the rules of procedure in this section 
and Sec. Sec. 1206.1-8 and 1206.1-9.
    (b) Presiding officer. (1) The presiding officer at the hearing 
shall be the responsible Corporation official or, at the discretion of 
the responsible Corporation official, an independent hearing examiner 
designated as promptly as possible in accordance with section 3105 of 
title 5 of the United States Code. The presiding officer shall conduct a 
full and fair hearing, avoid delay, maintain order, and make a 
sufficient record for a full and true disclosure of the facts and 
issues. To accomplish

[[Page 26]]

these ends, the presiding officer shall have all powers authorized by 
law, and he may make all procedural and evidentiary rulings necessary 
for the conduct of the hearing. The hearing shall be open to the public 
unless the presiding officer for good cause shown shall otherwise 
determine.
    (2) After the notice described in paragraph (f) of this section is 
filed with the presiding officer, he shall not consult any person or 
party on a fact in issue unless on written notice and opportunity for 
all parties to participate. However, in performing his functions under 
this part the presiding officer may use the assistance and advice of an 
attorney designated by the General Counsel of the Corporation: Provided, 
That the attorney designated to assist him has not represented the 
Corporation or any other party or otherwise participated in a 
proceeding, recommendation, or decision in the particular matter.
    (c) Presentation of evidence. Both the Corporation and the recipient 
are entitled to present their case by oral or documentary evidence, to 
submit rebuttal evidence and to conduct such examination and cross-
examination as may be required for a full and true disclosure of all 
facts bearing on the issues. The issues shall be those stated in the 
notice required to be filed by paragraph (f) of this section, those 
stipulated in a prehearing conference or those agreed to by the parties.
    (d) Participation. (1) In addition to the Corporation, the 
recipient, and any agency which has a right to appear, the presiding 
officer in his discretion may permit the participation in the 
proceedings of such persons or organizations as he deems necessary for a 
proper determination of the issues involved. Such participation may be 
limited to those issues or activities which the presiding officer 
believes will meet the needs of the proceeding, and may be limited to 
the filing of written material.
    (2) Any person or organization that wishes to participate in a 
proceeding may apply for permission to do so from the presiding officer. 
This application, which shall be made as soon as possible after the 
notice of suspension or proposed termination has been received by the 
recipient, shall state the applicant's interest in the proceeding, the 
evidence or arguments the applicant intends to contribute, and the 
necessity for the introduction of such evidence or arguments.
    (3) The presiding officer shall permit or deny such participation 
and shall give notice of his decision to the applicant, the recipient, 
and the Corporation, and, in the case of denial, a brief statement of 
the reasons for his decision: Provided however, That the presiding 
officer may subsequently permit such participation if, in his opinion, 
it is warranted by subsequent circumstances. If participation is 
granted, the presiding officer shall notify all parties of that fact and 
may, in appropriate cases, include in the notification a brief statement 
of the issues as to which participation is permitted.
    (4) Permission to participate to any extent is not a recognition 
that the participant has any interest which may be adversely affected or 
that the participant may be aggrieved by any decision, but is allowed 
solely for the aid and information of the presiding officer.
    (e) Filing. All papers and documents which are required to be filed 
shall be filed with the presiding officer. Prior to filing, copies shall 
be sent to the other parties.
    (f) Notice. The responsible Corporation official shall send the 
recipient and any other party a written notice which states the time, 
place, nature of the hearing, the legal authority and jurisdiction under 
which the hearing is to be held. The notice shall also identify with 
reasonable specificity the facts relied on as justifying termination and 
the Corporation requirements which it is contended the recipient has 
violated. The notice shall be filed and served not later than 10 days 
prior to the hearing and a copy thereof shall be filed with the 
presiding officer.
    (g) Notice of intention to appear. The recipient and any other party 
which has a right or has been granted permission to participate in the 
hearing shall give written confirmation to the Corporation of its 
intention to appear at the hearing 3 days before it is scheduled to 
occur. Failing to do so may, at the discretion of the presiding officer,

[[Page 27]]

be deemed a waiver of the right to a hearing.
    (h) Form and date of service. All papers and documents filed or sent 
to party shall be signed in ink by the appropriate party or his 
authorized representative. The date on which papers are filed shall be 
the day on which the papers or documents are deposited, postage prepaid 
in the U.S. mail, or are delivered in person: Provided however, That the 
effective date of the notice that there appear to be grounds which 
warrant terminating assistance shall be the date of its delivery or 
attempted delivery at the recipient's last known address as reflected in 
the records of the Corporation.
    (i) Prehearing conferences. Prior to the commencement of a hearing 
the presiding officer may, subject to the provisions of paragraph (b)(2) 
of this section, require the parties to meet with him or correspond with 
him concerning the settlement of any matter which will expedite a quick 
and fair conclusion of the hearing.
    (j) Evidence. Technical rules of evidence shall not apply to 
hearings conducted pursuant to this subpart, but the presiding officer 
shall apply rules or principles designed to assure production of 
relevant evidence and to subject testimony to such examination and cross 
examination as may be required for a full and true disclosure of the 
facts. The presiding officer may exclude irrelevant, immaterial, or 
unduly repetitious evidence. A transcription shall be made of the oral 
evidence and shall be made available to any participant upon payment of 
the prescribed costs. All documents and other evidence submitted shall 
be open to examination by the parties and opportunity shall be given to 
refute facts and arguments advanced on either side of the issues.
    (k) Depositions. If the presiding officer determines that the 
interests of justice would be served, he may authorize the taking of 
depositions provided that all parties are afforded an opportunity to 
participate in the taking of the depositions. The party who requested 
the deposition shall arrange for a transcript to be made of the 
proceedings and shall upon request, and at his expense, furnish all 
other parties with copies of the transcript.
    (l) Official notice. Official notice may be taken of a public 
document, or part of a public document, such as a statute, official 
report, decision, opinion or published scientific data issued by any 
agency of the Federal Government or a State or local government and such 
document or data may be entered on the record without further proof of 
authenticity. Official notice may also be taken of such matters as may 
be judicially noticed in the courts of the United States, or any other 
matter of established fact within the general knowledge of the 
Corporation. If the decision of the presiding officer rests on official 
notice of a material fact not appearing in evidence, a party shall on 
timely request be afforded an opportunity to show the contrary.
    (m) Proposed findings and conclusions. After the hearing has 
concluded, but before the presiding officer makes his decision, he shall 
afford each participant a reasonable opportunity to submit proposed 
findings of fact and conclusions. After considering each proposed 
finding or conclusion the presiding officer shall state in his decision 
whether he has accepted or rejected them in accordance with the 
provisions of Sec. 1206.1-8(a).



Sec. 1206.1-8  Decisions and notices regarding termination.

    (a) Each decision of a presiding officer shall contain his findings 
of fact, and conclusions, and shall state whether he has accepted or 
rejected each proposed finding of fact and conclusion submitted by the 
parties, pursuant to Sec. 1206.1-7(m). Findings of fact shall be based 
only upon evidence submitted to the presiding officer and matters of 
which official notice has been taken. The decision shall also specify 
the requirement or requirements with which it is found that the 
recipient has failed to comply.
    (b) The decision of the presiding officer may provide for continued 
suspension or termination of assistance to the recipient in whole or in 
part, and may contain such terms, conditions, and other provisions as 
are consistent with and will effectuate the purposes of the DVSA.

[[Page 28]]

    (c) If the hearing is held by an independent hearing examiner rather 
than by the responsible Corporation official, he shall make an initial 
decision, and a copy of this initial decision shall be mailed to all 
parties. Any party may, within 20 days of the mailing of such initial 
decision, or such longer period of time as the presiding officer 
specifies, file with the responsible Corporation official his written 
exceptions to the initial decision and any supporting brief or 
statement. Upon the filing of such exceptions, the responsible 
Corporation official shall, within 20 days of the mailing of the 
exceptions, review the initial decision and issue his own written 
decision thereof, including the reasons therefore. The decision of the 
responsible Corporation official may increase, modify, approve, vacate, 
remit, or mitigate any sanction imposed in the initial decision or may 
remand the matter to the presiding officer for further hearing or 
consideration.
    (d) Whenever a hearing is waived, a decision shall be made by the 
responsible Corporation official and a written copy of the final 
decision of the responsible Corporation official shall be given to the 
recipient.
    (e) The recipient may request the CEO to review a final decision by 
the responsible Corporation official which provides for the termination 
of assistance. Such a request must be made in writing within 15 days 
after the recipient has been notified of the decision in question and 
must state in detail the reasons for seeking the review. In the event 
the recipient requests such a review, the CEO or his designee shall 
consider the reasons stated by the recipient for seeking the review and 
shall approve, modify, vacate or mitigate any sanction imposed by the 
responsible Corporation official or remand the matter to the responsible 
Corporation official for further hearing or consideration. The decision 
of the responsible Corporation official will be given great weight by 
the CEO or his designee during the review. During the course of his 
review the CEO or his designee may, but is not required to, hold a 
hearing or allow the filing of briefs and arguments. Pending the 
decision of the CEO or his designee assistance shall remain suspended 
under the terms and conditions specified by the responsible Corporation 
official, unless the responsible Corporation official or the CEO or his 
designee otherwise determines. Every reasonable effort shall be made to 
complete the review by the CEO or his designee within 30 days of receipt 
by the CEO of the recipient's request. The CEO or his designee may 
however extend this period of time if he determines that additional time 
is necessary for an adequate review.



Sec. 1206.1-9  Right to counsel; travel expenses.

    In all formal or informal proceedings under this subpart, the 
recipient and the Corporation shall have the right to be represented by 
counsel or other authorized representatives. If the recipient and any 
agency which has a right to participate in an informal meeting pursuant 
to Sec. 1206.1-4 or a termination hearing pursuant to Sec. 1206.1-7 do 
not have an attorney acting in that capacity as a regular member of the 
staff of the organization or a retainer arrangement with an attorney, 
the Boards of Directors of such recipient and agency will be authorized 
to designate an attorney to represent their organizations at any such 
show cause proceeding or termination hearing and to transfer sufficient 
funds from the Federal grant monies they have received for the project 
to pay the fees, travel, and per diem expenses of such attorney. The 
fees for such attorney shall be the reasonable and customary fees for an 
attorney practicing in the locality of the attorney. However, such fees 
shall not exceed $100 per day without the prior express written approval 
of the Corporation. Travel and per diem expenses may be paid to such 
attorney only in accordance with the policies set forth in the federal 
government travel regulations. The Boards of Directors of the recipient 
or any agency which has a right to participate in an informal meeting 
pursuant to Sec. 1206.1-4 or a termination hearing pursuant to Sec. 
1206.1-7 will also be authorized to designate two persons in addition to 
an attorney whose travel and per diem expenses to attend the meeting or 
hearing may be paid from Federal grant or contract

[[Page 29]]

monies. Such travel and per diem expenses shall conform to the policies 
set forth in the federal government travel regulations.



Sec. 1206.1-10  Modification of procedures by consent.

    The responsible Corporation official or the presiding officer of a 
termination hearing may alter, eliminate or modify any of the provisions 
of this subpart with the consent of the recipient and, in the case of a 
termination hearing, with the consent of all agencies that have a right 
to participate in the hearing pursuant to Sec. 1206.1-5(e). Such 
consent must be in writing or be recorded in the hearing transcript.



Sec. 1206.1-11  Other remedies.

    The procedures established by this subpart shall not preclude the 
Corporation from pursuing any other remedies authorized by law.



              Subpart B_Denial of Application for Refunding



Sec. 1206.2-1  Applicability of this subpart.

    This subpart applies to grantees and contractors receiving financial 
assistance under title II of the DVSA. The procedures in the subpart do 
not apply to review of applications for sponsors who receive VISTA 
members under the DVSA.

[80 FR 63457, Oct. 20, 2015]



Sec. 1206.2-2  Purpose.

    This subpart establishes rules and review procedures for the denial 
of a current recipient's application for refunding.



Sec. 1206.2-3  Definitions.

    As used in this subpart, ``Corporation'', ``CEO'', and ``recipient'' 
are defined in accordance with Sec. 1206.1-3.
    Financial assistance and assistance include the services of National 
Senior Service Corps volunteers supported in whole or in part with CNCS 
funds under the DVSA.
    Program account includes assistance provided by CNCS to support a 
particular program activity; for example, Foster Grandparent Program, 
Senior Companion Program and Retired Senior Volunteer Program.
    Refunding includes renewal of an application for the assignment of 
National Senior Service Corps volunteers.

[80 FR 63457, Oct. 20, 2015]



Sec. 1206.2-4  Procedures.

    (a) The procedures set forth in paragraphs (b) through (g) of this 
section applies only where an application for refunding submitted by a 
current recipient is rejected or is reduced to 80 percent or less of the 
applied-for level of funding or the recipient's current level of 
operations, whichever is less. It is further a condition for application 
of these procedures that the rejection or reduction be based on 
circumstances related to the particular grant or contract. These 
procedures do not apply to reductions based on legislative requirements, 
or on general policy or in instances where, regardless of a recipient's 
current level of operations, its application for refunding is not 
reduced by 20 percent or more. The fact that the basis for rejecting an 
application may also be a basis for termination under subpart A of this 
part shall not prevent the use of this subpart to the exclusion of the 
procedures in subpart A.
    (b) Before rejecting an application of a recipient for refunding the 
Corporation shall notify the recipient of its intention, in writing, at 
least 75 days before the end of the recipient's current program year or 
grant budget period. The notice shall inform the recipient that a 
tentative decision has been made to reject or reduce an application for 
refunding. The notice shall state the reasons for the tentative decision 
to which the recipient shall address itself if it wishes to make a 
presentation as described in paragraphs (c) and (d) of this section.
    (c) If the notice of tentative decision is based on any reasons, 
other than those described in paragraph (d) of this section, including, 
but not limited to, situations in which the recipient has ineffectively 
managed Corporation resources or substantially failed to comply with 
Corporation policy and overall objectives under a contract or grant 
agreement with the Corporation, the

[[Page 30]]

recipient shall be informed in the notice, of the opportunity to submit 
written material and to meet informally with a Corporation official to 
show cause why its application for refunding should not be rejected or 
reduced. If the recipient requests an informal meeting, such meeting 
shall be held on a date specified by the Corporation. However, the 
meeting may not, without the consent of the recipient, be scheduled 
sooner than 14 days, nor more than 30 days, after the Corporation has 
mailed the notice to the recipient. If the recipient requests an 
informal meeting, the meeting shall be scheduled by the Corporation as 
soon as possible after receipt of the request. The official who shall 
conduct this meeting shall be a Corporation official who is authorized 
to finally approve the refunding in question, or his designee.
    (d) If the notice of tentative decision is based upon a specific 
charge of failure to comply with the terms and conditions of the grant 
or contract, alleging wrongdoing on the part of the recipient, the 
notice shall offer the recipient an opportunity for an informal hearing 
before a mutually agreed-upon impartial hearing officer. The authority 
of such hearing officer shall be limited to conducting the hearing and 
offering recommendations. The Corporation will retain all authority to 
make the final determination as to whether the application should be 
finally rejected or reduced. If the recipient requests an informal 
hearing, such hearing shall be held at a date specified by the 
Corporation. However, such hearing may not, without the consent of the 
recipient, be scheduled sooner than 14 days nor more than 30 days after 
the Corporation mails the notice to the recipient.
    (e) In the selection of a hearing official and the location of 
either an informal meeting or hearing, the Corporation, while mindful of 
considerations of the recipient, will take care to insure that costs are 
kept to a minimum. The informal meeting or hearing shall be held in the 
city or county in which the recipient is located, in the appropriate 
Service Center or Corporation State Office, or another appropriate 
location. Within the limits stated in the preceding sentence, the 
decision as to where the meeting shall be held will be made by the 
Corporation, after weighing the convenience factors of the recipient. 
For the convenience of the recipient, the Corporation will pay the 
reasonable travel expenses for up to two representatives of the 
recipient, if requested.
    (f) The recipient shall be informed of the final Corporation 
decision on refunding and the basis for the decision by the deciding 
official.
    (g) If the recipient's budget period expires prior to the final 
decision by the deciding official, the recipient's authority to continue 
program operations shall be extended until such decision is made and 
communicated to the recipient. If a National Senior Service Corps 
volunteer's term of service expires after receipt by a sponsor of a 
tentative decision not to refund a project, the period of service of the 
volunteer may be similarly extended. No volunteers may be reenrolled for 
a period of service while a tentative decision not to refund is pending. 
If program operations are so extended, CNCS and the recipient shall 
provide, subject to the availability of funds, operating funds at the 
same levels as in the previous budget period to continue program 
operations.

[69 FR 19110, Apr. 12, 2004, as amended at 80 FR 63457, Oct. 20, 2015]



Sec. 1206.2-5  Right to counsel.

    In all formal or informal proceedings under this subpart, the 
recipient and the Corporation shall have the right to be represented by 
counsel or other authorized representatives, at their own expense.

                       PARTS 1210	1211 [RESERVED]

 PART 1212_VOLUNTEER AGENCIES PROCEDURES FOR NATIONAL GRANT VOLUNTEERS 
                               [RESERVED]

[[Page 31]]



PART 1214_ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF HANDICAP
IN PROGRAMS OR ACTIVITIES CONDUCTED BY ACTION--Table of Contents



Sec.
1214.101 Purpose.
1214.102 Application.
1214.103 Definitions.
1214.104-1214.109 [Reserved]
1214.110 Self-evaluation.
1214.111 Notice.
1214.112-1214.129 [Reserved]
1214.130 General prohibitions against discrimination.
1214.131-1214.139 [Reserved]
1214.140 Employment.
1214.141-1214.148 [Reserved]
1214.149 Program accessibility: Discrimination prohibited.
1214.150 Program accessibility: Existing facilities.
1214.151 Program accessibility: New construction and alterations.
1214.152-1214.159 [Reserved]
1214.160 Communications.
1214.161-1214.169 [Reserved]
1214.170 Compliance procedures.

    Authority: 29 U.S.C. 794; 42 U.S.C. 5057.

    Source: 55 FR 47761, Nov. 15, 1990, unless otherwise noted.



Sec. 1214.101  Purpose.

    The purpose of this part is to effectuate section 119 of the 
Rehabilitation, Comprehensive Services, and Developmental Disabilities 
Amendments of 1978, which amended section 504 of the Rehabilitation Act 
of 1973 to prohibit discrimination on the basis of handicap in programs 
or activities conducted by Executive agencies or the United States 
Postal Service.



Sec. 1214.102  Application.

    This part applies to all programs or activities conducted by the 
agency, except for programs or activities conducted outside the United 
States that do not involve individuals with handicaps in the United 
States.



Sec. 1214.103  Definitions.

    For purposes of this part, the term--
    Agency means ACTION.
    Assistant Attorney General means the Assistant Attorney General, 
Civil Rights Division, United States Department of Justice.
    Auxiliary aids means services or devices that enable persons with 
impaired sensory, manual, or speaking skills to have an equal 
opportunity to participate in, and enjoy the benefits of, programs or 
activities conducted by the agency. For example, auxiliary aids useful 
for persons with impaired vision include readers, Brailled materials, 
audio recordings, and other similar services and devices. Auxiliary aids 
useful for persons with impaired hearing include telephone handset 
amplifiers, telephones compatible with hearing aids, telecommunication 
devices for deaf persons (TDD's), interpreters, notetakers, written 
materials, and other similar services and devices.
    Complete complaint means a written statement that contains the 
complainant's name and address and describes the agency's alleged 
discriminatory action in sufficient detail to inform the agency of the 
nature and date of the alleged violation of section 504 of the Act. It 
shall be signed by the complainant or by someone authorized to do so on 
his or her behalf. Complaints filed on behalf of classes or third 
parties shall describe or identify (by name, if possible) the alleged 
victims of discrimination.
    Facility means all or any portion of buildings, structures, 
equipment, roads, walks, parking lots, rolling stock or other 
conveyances, or other real or personal property.
    Individuals with handicaps means any person who has a physical or 
mental impairment that substantially limits one or more major life 
activities, has a record of such an impairment, or is regarded as having 
such an impairment. As used in this definition, the phrase:
    (1) Physical or mental impairment includes--
    (i) Any physiological disorder or condition, cosmetic disfigurement, 
or anatomical loss affecting one or more of the following body systems: 
Neurological; musculoskeletal; special sense organs; respiratory, 
including speech organs; cardiovascular; reproductive; digestive; 
genitourinary; hemic and lymphatic; skin; and endocrine; or
    (ii) Any mental or psychological disorder, such as mental 
retardation, organic brain syndrome, emotional or mental illness, and 
specific learning

[[Page 32]]

disabilities. The term ``physical or mental impairment'' includes, but 
is not limited to, such diseases and conditions as orthopedic, visual, 
speech, and hearing impairments, cerebral palsy, epilepsy, muscular 
dystrophy, multiple sclerosis, cancer, heart disease, diabetes, mental 
retardation, emotional illness, and drug addiction and alcoholism.
    (2) Major life activities includes functions such as caring for 
one's self, performing manual tasks, walking, seeing, hearing, speaking, 
breathing, learning, and working.
    (3) Has a record of such an impairment means has a history of, or 
has been misclassified as having, a mental or physical impairment that 
substantially limits one or more major life activities.
    (4) Is regarded as having an impairment means--
    (i) Has a physical or mental impairment that does not substantially 
limit major life activities but is treated by the agency as constituting 
such a limitation;
    (ii) Has a physical or mental impairment that substantially limit 
major life activities only as a result of the attitudes of others toward 
such impairment; or
    (iii) Has none of the impairments defined in paragraph (1) of this 
definition but is treated by the agency as having such an impairment.
    Qualified individual with handicaps means--
    (1) With respect to preschool, elementary, or secondary education 
services provided by the agency, an individual with handicaps who is a 
member of a class of persons otherwise entitled by statute, regulation, 
or agency policy to receive educational services from the agency;
    (2) With respect to any other agency program or activity under which 
a person is required to perform services or to achieve a level of 
accomplishment, an individual with handicaps who meets the essential 
eligibility requirements and who can achieve the purpose of the program 
or activity without modifications in the program or activity that the 
agency can demonstrate would result in a fundamental alteration in its 
nature;
    (3) With respect to any other program or activity, an individual 
with handicaps who meets the essential eligibility requirements for 
participation in, or receipt of benefits from, that program or activity; 
and
    (4) Qualified handicapped person as that term is defined for 
purposes of employment in 29 CFR 1613.702(f), which is made applicable 
to this part by Sec. 1214.140.
    Section 504 of the Act means section 504 of the Rehabilitation Act 
of 1973 (Pub. L. 93-112, 87 Stat. 394 (29 U.S.C. 794)), as amended by 
the Rehabilitation Act Amendments of 1974 (Pub. L. 93-516, 88 Stat. 
1617); the Rehabilitation, Comprehensive Services, and Developmental 
Disabilities Amendments of 1978 (Pub. L. 95-602, 92 Stat. 2955); the 
Rehabilitation Act Amendments of 1986 (Pub. L. 99-506, 100 Stat. 1810), 
and the Civil Rights Restoration Act of 1987 (Pub. L. 100-259, 102 Stat. 
28). As used in this part, section 504 of the Act applies only to 
programs or activities conducted by Executive agencies and not to 
federally assisted programs.



Sec. Sec. 1214.104-1214.109  [Reserved]



Sec. 1214.110  Self-evaluation.

    (a) The agency shall, within one year of the effective date of this 
part, evaluate its current policies and practices, and the effects 
thereof, that do not or may not meet the requirements of this part and, 
to the extent modification of any such policies and practices is 
required, the agency shall proceed to make the necessary modifications.
    (b) The agency shall provide an opportunity to interested persons, 
including individuals with handicaps or organizations representing 
individuals with handicaps, to participate in the self-evaluation 
process by submitting comments (both oral and written).
    (c) The agency shall, for at least three years following completion 
of the self-evaluation, required under paragraph (a) of this section, 
maintain on file and make available for public inspection--
    (1) A description of areas examined and any problems identified; and
    (2) A description of any modifications made.

[[Page 33]]



Sec. 1214.111  Notice.

    The agency shall make available to employees, applicants, 
participants, beneficiaries, and other interested persons such 
information regarding the provisions of this part and its applicability 
to the programs or activities conducted by the agency, and make such 
information available to them in such manner as the head of the agency 
finds necessary to apprise such persons of the protections against 
discrimination assured them by section 504 of the Act and this part.



Sec. Sec. 1214.112-1214.129  [Reserved]



Sec. 1214.130  General prohibitions against discrimination.

    (a) No qualified individual with handicaps shall, on the basis of 
handicap, be excluded from participation in, be denied the benefits of, 
or otherwise be subjected to discrimination under any program or 
activity conducted by the agency.
    (b)(1) The agency, in providing any aid, benefit, or service, may 
not, directly or through contractual, licensing, or other arrangements, 
on the basis of handicap--
    (i) Deny a qualified individual with handicaps the opportunity to 
participate in or benefit from the aid, benefit, or service;
    (ii) Afford a qualified individual with handicaps an opportunity to 
participate in or benefit from the aid, benefit, or service that is not 
equal to that afforded others;
    (iii) Provide a qualified individual with handicaps with aid, 
benefit, or service that is not as effective in affording equal 
opportunity to obtain the same result, to gain the same benefit, or to 
reach the same level of achievement as that provided to others;
    (iv) Provide different or separate aid, benefits, or services to 
individuals with handicaps or to any class of individuals with handicaps 
than is provided to others unless such action is necessary to provide 
qualified individuals with handicaps with aid, benefits, or services 
that are as effective as those provided to others;
    (v) Deny a qualified individual with handicaps the opportunity to 
participate as a member of planning or advisory boards; or
    (vi) Otherwise limit a qualified individual with handicaps in the 
enjoyment of any right, privilege, advantage, or opportunity enjoyed by 
others receiving the aid, benefit, or service.
    (2) The agency may not deny a qualified individual with handicaps 
the opportunity to participate in programs or activities that are not 
separate or different, despite the existence of permissibly separate or 
different programs or activities.
    (3) The agency may not, directly or through contractual or other 
arrangements, utilize criteria or methods of administration the purpose 
or effect of which would be to--
    (i) Subject qualified individuals with handicaps to discrimination 
on the basis of handicap; or
    (ii) Defeat or substantially impair accomplishment of the objectives 
of a program or activity with respect to individuals with handicaps.
    (4) The agency may not, in determining the site or location of a 
facility, make selections the purpose or effect of which would--
    (i) Exclude individuals with handicaps from, deny them the benefits 
of, or otherwise subject them to discrimination under any program or 
activity conducted by the agency; or
    (ii) Defeat or substantially impair the accomplishment of the 
objectives of a program or activity with respect to individuals with 
handicaps.
    (5) The agency, in the selection of procurement contractors, may not 
use criteria that subject qualified individuals with handicaps to 
discrimination on the basis of handicap.
    (c) The exclusion of nonhandicapped persons from the benefits of a 
program limited by Federal statute or Executive order to individuals 
with handicaps or the exclusion of a specific class of individuals with 
handicaps from a program limited by Federal statute or Executive order 
to a different class of individuals with handicaps is not prohibited by 
this part.
    (d) The agency shall administer programs and activities in the most 
integrated setting appropriate to the needs of qualified individuals 
with handicaps.

[[Page 34]]



Sec. Sec. 1214.131-1214.139  [Reserved]



Sec. 1214.140  Employment.

    No qualified individual with handicaps shall, on the basis of 
handicap, be subjected to discrimination in employment under any program 
or activity conducted by the agency. The definitions, requirements, and 
procedures of section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 
791), as established by the Equal Employment Opportunity Commission in 
29 CFR part 1613, shall apply to employment in federally conducted 
programs or activities.



Sec. Sec. 1214.141-1214.148  [Reserved]



Sec. 1214.149  Program accessibility: Discrimination prohibited.

    Except as otherwise provided in Sec. 1214.150, no qualified 
individual with handicaps shall, because the agency's facilities are 
inaccessible to or unusable by individuals with handicaps, be denied the 
benefits of, be excluded from participation in, or otherwise be 
subjected to discrimination under any program or activity conducted by 
the agency.



Sec. 1214.150  Program accessibility: Existing facilities.

    (a) General. The agency shall operate each program or activity so 
that the program or activity, when viewed in its entirety, is readily 
accessible to and usable by individuals with handicaps. This paragraph 
does not--
    (1) Necessarily require the agency to make each of its existing 
facilities accessible to and usable by individuals with handicaps; or
    (2) Require the agency to take any action that it can demonstrate 
would result in a fundamental alteration in the nature of a program or 
activity or in undue financial and administrative burdens. In those 
circumstances where agency personnel believe that the proposed action 
would fundamentally alter the program or activity or would result in 
undue financial and administrative burdens, the agency has the burden of 
proving that compliance with Sec. 1214.150(a) would result in such 
alteration or burdens. The decision that compliance would result in such 
alteration or burdens must be made by the agency head or his or her 
designee after considering all agency resources available for use in the 
funding and operation of the conducted program or activity and must be 
accompanied by a written statement of the reasons for that conclusion. 
If an action would result in such an alteration or such burdens, the 
agency shall take any other action that would not result in such an 
alteration or such burdens but would nevertheless ensure that 
individuals with handicaps receive the benefits and services of the 
program or activity.
    (b) Methods. The agency may comply with the requirements of this 
section through such means as redesign of equipment, reassignment of 
services to accessible buildings, assignment of aides to beneficiaries, 
home visits, delivery of services at alternate accessible sites, 
alteration of existing facilities and construction of new facilities, 
use of accessible rolling stock, or any other methods that result in 
making its programs or activities readily accessible to and usable by 
individuals with handicaps. The agency is not required to make 
structural changes in existing facilities where other methods are 
effective in achieving compliance with this section. The agency, in 
making alterations to existing buildings, shall meet accessibility 
requirements to the extent compelled by the Architectural Barriers Act 
of 1968, as amended (42 U.S.C. 4151-4157), and any regulations 
implementing it. In choosing among available methods for meeting the 
requirements of this section, the agency shall give priority to those 
methods that offer programs and activities to qualified individuals with 
handicaps in the most integrated setting appropriate.
    (c) Time period for compliance. The agency shall comply with the 
obligations established under this section within sixty days of the 
effective date of this part except that where structural changes in 
facilities are undertaken, such changes shall be made within three years 
of the effective date of this part, but in any event as expeditiously as 
possible.
    (d) Transition plan. In the event that structural changes to 
facilities will be

[[Page 35]]

undertaken to achieve program accessibility, the agency shall develop, 
within six months of the effective date of this part, a transition plan 
setting forth the steps necessary to complete such changes. The agency 
shall provide an opportunity to interested persons, including 
individuals with handicaps or organizations representing individuals 
with handicaps, to participate in the development of the transition plan 
by submitting comments (both oral and written). A copy of the transition 
plan shall be made available for public inspection. The plan shall, at a 
minimum--
    (1) Identify physical obstacles in the agency's facilities that 
limit the accessibility of its programs or activities to individuals 
with handicaps;
    (2) Describe in detail the methods that will be used to make the 
facilities accessible;
    (3) Specify the schedule for taking the steps necessary to achieve 
compliance with this section and, if the time period of the transition 
plan is longer than one year, identify steps that will be taken during 
each year of the transition period; and
    (4) Indicate the agency official responsible for implementation of 
the plan.



Sec. 1214.151  Program accessibility: New construction and alterations.

    Each building or part of a building that is constructed or altered 
by, on behalf of, or for the use of the agency shall be designed, 
constructed, or altered so as to be readily accessible to and usable by 
individuals with handicaps. The definitions, requirements, and standards 
of the Architectural Barriers Act (42 U.S.C. 4151-4157), as established 
in 41 CFR 101-19.600 to 101-19.607, apply to buildings covered by this 
section.



Sec. Sec. 1214.152-1214.159  [Reserved]



Sec. 1214.160  Communications.

    (a) The agency shall take appropriate steps to ensure effective 
communication with applicants, participants, personnel of other Federal 
entities, and members of the public.
    (1) The agency shall furnish appropriate auxiliary aids where 
necessary to afford an individual with handicaps an equal opportunity to 
participate in, and enjoy the benefits of, a program or activity 
conducted by the agency.
    (i) In determining what type of auxiliary aid will be provided, the 
agency shall give primary consideration to the requests of the 
individual with handicaps.
    (ii) The agency need not provide individually prescribed devices, 
readers for personal use or study, or other devices of a personal 
nature.
    (2) Where the agency communicates with applicants and beneficiaries 
by telephone, telecommunication devices for deaf persons (TDD's) or 
equally effective telecommunication systems shall be used to communicate 
with persons with impaired hearing.
    (b) The agency shall ensure that interested persons, including 
persons with impaired vision or hearing, can obtain information as to 
the existence and location of accessible services, activities, and 
facilities.
    (c) The agency shall provide a sign at a primary entrance to each of 
its inaccessible facilities, directing users to a location at which they 
can obtain information about accessible facilities. The international 
symbol for accessibility shall be displayed at each primary entrance to 
each accessible facility.
    (d) This section does not require the agency to take any action that 
it can demonstrate would result in a fundamental alteration in the 
nature of a program or activity or in undue financial and administrative 
burdens. In those circumstances where agency personnel believe that the 
proposed action would fundamentally alter the program or activity or 
would result in undue financial and administrative burdens, the agency 
has the burden of proving that compliance with Sec. 1214.160 would 
result in such alteration or burdens. The decision that compliance would 
result in such alteration or burdens must be made by the agency head or 
his or her designee after considering all agency resources available for 
use in the funding and operation of the conducted program or activity 
and must be accompanied by a written statement of the reasons for 
reaching that conclusion. If an action required to comply

[[Page 36]]

with this section would result in such alteration or such burdens, the 
agency shall take any other action that would not result in such an 
alteration or such burdens but would nevertheless ensure that, to the 
maximum extent possible, individuals with handicaps receive the benefits 
and services of the program or activity.



Sec. Sec. 1214.161-1214.169  [Reserved]



Sec. 1214.170  Compliance procedures.

    (a) Except as provided in paragraph (b) of this section, this 
section applies to all allegations of discrimination on the basis of 
handicap in programs and activities conducted by the agency.
    (b) The agency shall process complaints alleging violations of 
section 504 with respect to employment according to the procedures 
established by the Equal Employment Opportunity Commission in 29 CFR 
part 1613 pursuant to section 501 of the Rehabilitation Act of 1973 (29 
U.S.C. 791).
    (c) Responsibility for implementation and operation of this section 
shall be vested in the Director, Equal Opportunity Staff.



PART 1216_NONDISPLACEMENT OF EMPLOYED WORKERS AND NONIMPAIRMENT 
OF CONTRACTS FOR SERVICE--Table of Contents



Sec.
1216.1-1 Purpose.
1216.1-2 Applicability of this part.
1216.1-3 Policy.
1216.1-4 Exceptions.

    Authority: 42 U.S.C. 5044(a).

    Source: 40 FR 16209, Apr. 10, 1975, unless otherwise noted.



Sec. 1216.1-1  Purpose.

    This part establishes rules to assure that the services of 
volunteers in the Foster Grandparent Program, the Senior Companion 
Program, and The Retired and Senior Volunteer Program (RSVP), are 
limited to activities which would not otherwise be performed by employed 
workers and which will not supplant the hiring of, or result in the 
displacement of employed workers or impair existing contracts for 
service. This part implements section 404(a) of the Domestic Volunteer 
Service Act of 1973, Public Law 93-113 (the ``Act'').

[80 FR 63457, Oct. 20, 2015]



Sec. 1216.1-2  Applicability of this part.

    (a) All volunteers in either the Foster Grandparent Program, the 
Senior Companion Program, or The Retired and Senior Volunteer Program 
(RSVP), who are assigned, referred or serving pursuant to grants, 
contracts, or agreements made pursuant to the Act.
    (b) All agencies and organizations to which the volunteers in 
paragraph (a) of this section are assigned, referred or provide 
services.

[40 FR 16209, Apr. 10, 1975, as amended at 80 FR 63457, Oct. 20, 2015]



Sec. 1216.1-3  Policy.

    (a) Volunteers enrolled or participating in programs referred to in 
paragraphs (a) and (b) of Sec. 1216.1-2 may not perform any services or 
duties or engage in activities which would otherwise be performed by an 
employed worker as part of his assigned duties as an employee.
    (b) Volunteer referred to in paragraph (a) of this section may not 
perform any services or duties or engage in activities which will 
supplant the hiring of employed workers. This prohibition is violated 
if, prior to engaging a volunteer, an agency or organization referred to 
in Sec. 1216.1-2(c) had intended to hire a person to undertake all or a 
substantial part of the services, duties, or other activities to be 
provided by the volunteer.
    (c) Volunteers referred to in paragraph (a) of this section may not 
perform any services or duties or engage in activities which result in 
the displacement of employed workers. Such volunteers may not perform 
services or duties which have been performed by or were assigned to, any 
of the following:
    (1) Presently employed workers,
    (2) Employees who recently resigned or were discharged,
    (3) Employees who are on leave (terminal, temporary, vacation, 
emergency, or sick), or
    (4) Employees who are on strike or who are being locked out.

[[Page 37]]

    (d) Volunteers referred to in paragraph (a) of this section may not 
perform any services or duties or engage in activities which impair 
existing contracts for service. This prohibition is violated if a 
contract for services is modified or cancelled because an agency or 
organization referred to in Sec. 1216.1-2(b) engages a volunteer to 
provide or perform all or a substantial part of any services, duties, or 
other activities set forth in such contract. The term ``contract for 
services'' includes but is not limited to contracts, understandings and 
arrangements, either written or oral, to provide professional, 
managerial, technical, or administrative services.
    (e) Agencies and organizations referred to in Sec. 1216.1-2(b) are 
prohibited from assigning or permitting volunteers referred to in Sec. 
1216.1-2(a) to perform any services or duties or engage in any 
activities prohibited by paragraphs (a) through (d) of this section.



Sec. 1216.1-4  Exceptions.

    (a) The requirements of Sec. 1216.1-3 are not applicable to the 
following, or similar, situations:
    (1) Funds are unavailable for the employment of sufficient staff to 
accomplish a program authorized or of a character eligible for 
assistance under the Act and the activity, service, or duty is otherwise 
appropriate for the assignment of a volunteer.
    (2) Volunteer services are required in order to avoid or relieve 
suffering threatened by or resulting from major natural disasters or 
civil disturbances.
    (3) Reasonable efforts to obtain employed workers have been 
unsuccessful due to the unavailability of persons within the community 
who are able, willing, and qualified to perform the needed activities.
    (4) The assignment of volunteers will significantly expand services 
to a target community over those which could be performed by existing 
paid staff, and the activity, service or duty is otherwise appropriate 
for the assignment of a volunteer and no actual displacement of paid 
staff will occur as a result of the assignment.
    (b) For the purposes of paragraphs (a)(1) and (4) of this section, 
the assignment is not appropriate for the assignment of a volunteer if:
    (1) The service, duty, or activity is principally a routine 
administrative or clerical task. This definition applies only to any 
service, duty, or activity performed by a volunteer receiving financial 
support apart from reimbursement for expenses.
    (2) The volunteer is not directly in contact with groups or 
individuals whom the Act is designed to serve or is not performing 
services, duties, or engaged in activities authorized or of a character 
eligible for assistance under the Act.

                        PART 1217	1219 [RESERVED]



PART 1220_PAYMENT OF VOLUNTEER LEGAL EXPENSES--Table of Contents



                            Subpart A_General

Sec.
1220.1-1 Purpose.

                     Subpart B_Criminal Proceedings

1220.2-1 Full-time volunteers.
1220.2-2 Part-time volunteers.
1220.2-3 Procedure.

             Subpart C_Civil and Administrative Proceedings

1220.3-1 Full-time volunteers.
1220.3-2 Part-time volunteers.
1220.3-3 Procedure.

    Authority: 42 U.S.C. 5059.

    Source: 40 FR 28800, July 9, 1975, unless otherwise noted.



                            Subpart A_General



Sec. 1220.1-1  Purpose.

    This part implements section 419 of the Domestic Volunteer Service 
Act of 1973, Public Law 93-113 (the ``Act''). This part provides rules 
to ensure that the Corporation for National and Community Service, which 
administers the three federal programs, the Foster Grandparent Program 
(FGP), the Senior Companion Program (SCP), and The Retired and Senior 
Volunteer Program (RSVP), pays the expenses incurred in

[[Page 38]]

judicial and administrative proceedings for the defense of those 
volunteers serving in those programs. Payment of such expenses by CNCS 
for those volunteers include payment of counsel fees, court costs, bail 
or other expenses incidental to the volunteer's defense.

[80 FR 63458, Oct. 20, 2015]



                     Subpart B_Criminal Proceedings



Sec. 1220.2-1  Full-time volunteers.

    (a)(1) The Corporation for National and Community Service will pay 
all reasonable expenses for defense of full-time volunteers up to and 
including the arraignment of Federal, state, and local criminal 
proceedings, except in cases where it is clear that the charged offense 
results from conduct which is not related to his service as a volunteer.
    (2) Situations where conduct is clearly unrelated to a volunteer's 
service are those that arise either:
    (i) In a period prior to volunteer service,
    (ii) Under circumstances where the volunteer is not at his assigned 
volunteer project location, such as during periods of administrative, 
vacation, or emergency leave, or
    (iii) When he is at his volunteer station, but the activity or 
action giving rise to the charged offense is clearly not part of, or 
required by, such assignment.
    (b) Reasonable expenses in criminal proceedings beyond arraignment 
may be paid in cases where:
    (1) The charge against the volunteer relates to his assignment or 
status as a volunteer, and not his personal status or personal matters. 
A charge relating to a volunteer's assignment arises out of any activity 
or action which is a part of, or required by, such assignment. A charge 
relating to a volunteer's status is motivated exclusively by the fact 
that a defendant is a volunteer.
    (2) The volunteer has not admitted a willful or knowing violation of 
law, and
    (3) The charge(s) is not a minor misdemeanor, such as a minor 
vehicle violation for which a fine or bail forfeiture will not exceed 
$100.
    (c) Notwithstanding the foregoing, there may be situations in which 
the criminal proceeding results from a situation which could give rise 
to a civil claim under the Federal Tort Claims Act. In such situations, 
the Justice Department may agree to defend the volunteer. In those 
cases, unless there is a conflict between the volunteer's interest and 
that of the government, the Corporation for National and Community 
Service will not pay for additional private representation for the 
volunteer.

[40 FR 28800, July 9, 1975, as amended at 80 FR 63458, Oct. 20, 2015]



Sec. 1220.2-2  Part-time volunteers.

    (a) With respect to a part-time volunteer, the Corporation for 
National and Community Service will reimburse a sponsor for the 
reasonable expense it incurs for the defense of the volunteer in 
Federal, state and local criminal proceedings, including arraignment, 
only under the following circumstances:
    (1) The proceeding arises directly out of the volunteer's 
performance of activities pursuant to the Act;
    (2) The volunteer receives, or is eligible to receive, compensation, 
including allowances, stipend, or reimbursement for out-of-pocket 
expenses, under a Corporation for National and Community Service grant 
project; and
    (3) The conditions specified in paragraphs (b) (2) and (3) in Sec. 
1220.2-1 are met.
    (b) In certain circumstances volunteers who are ineligible for 
reimbursement of legal expenses by the Corporation for National and 
Community Service may be eligible for representation under the Criminal 
Justice Act (18 U.S.C. 3006A).

[40 FR 28800, July 9, 1975, as amended at 80 FR 63458, Oct. 20, 2015]



Sec. 1220.2-3  Procedure.

    (a) Immediately upon the arrest of any volunteer under circumstances 
in which the payment or bail to prevent incarceration or other serious 
consequences to the volunteer or the retention of an attorney prior to 
arraignment is necessary and is covered under

[[Page 39]]

Sec. 1220.2-1 or Sec. 1220.2-2, sponsors shall immediately notify the 
appropriate Corporation for National and Community Service state office 
or if the state office cannot be reached, the appropriate Area Manager.
    (b) Immediately after notification of the appropriate state office, 
and with the approval thereof, the sponsor shall advance up to $500 for 
the payment of bail or such other legal expenses as are necessary prior 
to arraignment to prevent the volunteer from being incarcerated. In the 
event it is subsequently determined that the Corporation for National 
and Community Service or a sponsor is not responsible under this policy 
for the volunteer's defense, any such advance may be recovered directly 
from the volunteer or from allowances, stipends, or out-of-pocket 
expenses which are payable or become payable to the volunteer. In the 
case of a grassroots sponsor of full-time volunteers that is not able to 
provide the $500, the Corporation for National and Community Service 
state office or Area Manager shall immediately make such sum available 
to the sponsor.
    (c) Immediately upon receipt of notification from the sponsor, the 
state or regional office shall notify the General Counsel, giving all 
facts and circumstances at that time known to such office. Thereafter 
the office shall cooperate with the General Counsel in making an 
investigation of all surrounding facts and circumstances and shall 
provide such information immediately to the General Counsel.
    (d) The General Counsel shall, upon notification by the state office 
or Area Manager, determine the extent to which the Corporation for 
National and Community Service will provide funds for the volunteer's 
defense or reimburse a sponsor for funds it spends on the volunteer's 
behalf. Included in this responsibility shall be the negotiation of fees 
and approval of other costs and expenses. State offices and Area 
Managers are not authorized to commit the Corporation for National and 
Community Service to the payment of volunteers' legal expenses or to 
reimburse a sponsor except as provided in this section, without the 
express consent of the General Counsel. Additionally, the General 
Counsel shall, in cases arising directly out of the performance of 
authorized project activities, ascertain whether the services of the 
United States Attorney can be made available to the volunteer.
    (e) The sponsor and the state and regional office shall have a 
continuing responsibility for cooperation and coordination with the 
Office of General Counsel during the pendency of any such litigation, 
and of notifying the General Counsel of any facts and circumstances 
which come to the attention of such office or the sponsor which affects 
such litigation.

[40 FR 28800, July 9, 1975, as amended at 80 FR 63458, Oct. 20, 2015]



             Subpart C_Civil and Administrative Proceedings



Sec. 1220.3-1  Full-time volunteers.

    The Corporation for National and Community Service will pay 
reasonable expenses incurred in the defense of full-time volunteers in 
Federal, state, and local civil judicial and administrative proceedings 
where:
    (a) The complaint or charge against the volunteer is directly 
related to his volunteer service and not to his personal activities or 
obligations.
    (b) The volunteer has not admitted willfully or knowingly pursuing a 
course of conduct which would result in the plaintiff or complainant 
initiating such a proceeding, and
    (c) If the judgment sought involves a monetary award, the amount 
sought exceeds $100.

[40 FR 28800, July 9, 1975, as amended at 80 FR 63458, Oct. 20, 2015]



Sec. 1220.3-2  Part-time volunteers.

    The Corporation for National and Community Service will reimburse 
sponsors for the reasonable expenses incidental to the defense of part-
time volunteers in Federal, state, and local civil judicial and 
administrative proceedings where:
    (a) The proceeding arises directly out of the volunteer's 
performance of activities pursuant to the Act;
    (b) The volunteer receives or is eligible to receive compensation, 
including allowances, stipend, or reimbursement for out-of-pocket 
expenses under the

[[Page 40]]

Corporation for National and Community Service grant; and
    (c) The conditions specified in Sec. 1220.3-1(b) and (c) are met.

[80 FR 63458, Oct. 20, 2015]



Sec. 1220.3-3  Procedure.

    Immediately upon the receipt by a volunteer of any court papers or 
administrative orders making a party to any proceeding covered under 
Sec. 1220.3-1 or Sec. 1220.3-2, the volunteer shall immediately notify 
his sponsor who in turn shall notify the appropriate Corporation for 
National and Community Service state office. The procedures referred to 
in Sec. 1220.2-3(c) through (e) shall thereafter be followed as 
appropriate.

[80 FR 63459, Oct. 20, 2015]

                          PART 1222 [RESERVED]



PART 1225_VOLUNTEER DISCRIMINATION COMPLAINT PROCEDURE--
Table of Contents



                      Subpart A_General Provisions

Sec.
1225.1 Purpose.
1225.2 Policy.
1225.3 Definitions.
1225.4 Coverage.
1225.5 Representation.
1225.6 Freedom from reprisal.
1225.7 Review of allegations of reprisal.

      Subpart B_Processing Individual Complaints of Discrimination

1225.8 Precomplaint procedure.
1225.9 Complaint procedure.
1225.10 Corrective action.
1225.11 Amount of attorney fees.

         Subpart C_Processing Class Complaints of Discrimination

1225.12 Precomplaint procedure.
1225.13 Acceptance, rejection, or cancellation of complaint.
1225.14 Consolidation of complaints.
1225.15 Notification and opting out.
1225.16 Investigation and adjustment of complaint.
1225.17 Agency decision.
1225.18 Notification of class members of decision.
1225.19 Corrective action.
1225.20 Claim appeals.
1225.21 Statutory rights.

    Authority: Secs. 417, 402(14), 420, Pub. L. 93-113, 87 Stat. 398, 
407, and 414; Sec. 5(a), Pub. L. 87-293, 75 Stat. 613; Executive Order 
12137, issued May 16, 1979.

    Source: 46 FR 1609, Jan. 6, 1981, unless otherwise noted.



                      Subpart A_General Provisions



Sec. 1225.1  Purpose.

    The purpose of this part is to establish a procedure for the filing, 
investigation, and administrative determination of allegations of 
discrimination based on race, color, national origin, religion, age, 
sex, handicap or political affiliation, which arise in connection with 
the recruitment, selection, placement, service, or termination of Peace 
Corps and ACTION applicants, trainees, and Volunteers for full-time 
service.



Sec. 1225.2  Policy.

    It is the policy of Peace Corps and ACTION to provide equal 
opportunity in all its programs for all persons and to prohibit 
discrimination based on race, color, national origin, religion, age, 
sex, handicap or political affiliation, in the recruitment, selection, 
placement, service, and termination of Peace Corps and ACTION 
Volunteers. It is the policy of Peace Corps and ACTION upon determining 
that such prohibited discrimination has occurred, to take all necessary 
corrective action to remedy the discrimination, and to prevent its 
recurrence.



Sec. 1225.3  Definitions.

    Unless the context requires otherwise, in this Part:
    (a) Director means the Director of Peace Corps for all Peace Corps 
applicant, trainee, or Volunteer complaints processed under this part, 
or the Director of ACTION for all domestic applicant, trainee, or 
Volunteer complaints processed under this part. The term shall also 
refer to any designee of the respective Director.
    (b) EO Director means the Director of the Equal Opportunity Division 
of the Office of Compliance, ACTION. The term shall also refer to any 
designee of the EO Director.
    (c) Illegal discrimination means discrimination on the basis of 
race, color,

[[Page 41]]

national origin, religion, age, sex, handicap or political affiliation 
as defined in section 5(a) of the Peace Corps Act (22 U.S.C. 2504); 
section 717 of the Civil Rights Act of 1964 (42 U.S.C. 2000-16); Title V 
of the Rehabilitation Act of 1973 (29 U.S.C. 791, et seq.); and the Age 
Discrimination Act of 1975 (42 U.S.C. 6101, et seq.). Further 
clarification of the scope of matters covered by this definition may be 
obtained by referring to the following regulations: Sex Discrimination: 
29 CFR part 1604; Religious Discrimination: 29 CFR part 1605; National 
Origin Discrimination: 29 CFR part 1606; Age Discrimination: 45 CFR part 
90; Handicap Discrimination: 29 CFR 1613.701 through 1613.707.
    (d) Applicant means a person who has submitted to the appropriate 
agency personnel a completed application required for consideration of 
eligibility for Peace Corps or ACTION volunteer service. ``Applicant'' 
may also mean a person who alleges that the actions of agency personnel 
precluded him or her from submitting such an application or any other 
information reasonably required by the appropriate personnel as 
necessary for a determination of the individual's eligibility for 
volunteer service.
    (e) Trainee means a person who has accepted an invitation issued by 
Peace Corps or ACTION and has registered for Peace Corps or ACTION 
training.
    (f) Volunteer means a person who has completed successfully all 
necessary training; met all clearance standards; has taken, if required, 
the oath prescribed in either section 5(j) of the Peace Corps Act (22 
U.S.C. 2504), or section 104(c) of the Volunteer Service Act of 1973, as 
amended (42 U.S.C. 104(c)) and has been enrolled as a full-time 
Volunteer by the appropriate agency.
    (g) Complaint means a written statement signed by the complainant 
and submitted to the EO Director. A complaint shall set forth 
specifically and in detail:
    (1) A description of the Peace Corps or ACTION management policy or 
practice, if any, giving rise to the complaint;
    (2) A detailed description including names and dates, if possible, 
of the actions of the Peace Corps or ACTION officials which resulted in 
the alleged illegal discrimination;
    (3) The manner in which the Peace Corps or ACTION action directly 
affected the complainant; and
    (4) The relief sought.

A complaint shall be deemed filed on the date it is received by the 
appropriate agency official. When a complaint does not conform with the 
above definition, it shall nevertheless be accepted. The complainant 
shall be notified of the steps necessary to correct the deficiencies of 
the complaint. The complainant shall have 30 days from his or her 
receipt of notification of the complaint defects to resubmit an amended 
complaint.
    (h) Counselor means an official designated by the EO Director to 
perform the functions of conciliation as detailed in this part.
    (i) Agent means a class member who acts for the class during the 
processing of a class complaint. In order to be accepted as the agent 
for a class complaint, in addition to those requirements of a complaint 
found in Sec. 1225.3(g) of this part, the complaint must meet the 
requirements for a class complaint as found in subpart C of these 
regulations.



Sec. 1225.4  Coverage.

    (a) These procedures apply to all Peace Corps or ACTION applicants, 
trainees, and Volunteers throughout their term of service with the Peace 
Corps or ACTION. When an applicant, trainee, or Volunteer makes a 
complaint which contains an allegation of illegal discrimination in 
connection with an action that would otherwise be processed under a 
grievance, early termination, or other administrative system of the 
agency, the allegation of illegal discrimination shall be processed 
under this part. At the discretion of the appropriate Director, any 
other issues raised may be consolidated with the discrimination 
complaint for processing under these regulations. Any issues which are 
not so consolidated shall continue to be processed under those 
procedures in which they were originally raised.
    (b) The submission of class complaints alleging illegal 
discrimination

[[Page 42]]

as defined above will be handled in accordance with the procedure 
outlined in subpart C.



Sec. 1225.5  Representation.

    Any aggrieved party may be represented and assisted in all stages of 
these procedures by an attorney or representative of his or her own 
choosing. An aggrieved party must immediately inform the agency if 
counsel is retained. Attorney fees or other appropriate relief may be 
awarded in the following circumstances:
    (a) Informal adjustment of a complaint. An informal adjustment of a 
complaint may include an award of attorney fees or other relief deemed 
appropriate by the EO Director. Where the parties agree on an adjustment 
of the complaint, but cannot agree on whether attorney fees or costs 
should be awarded, or on their amount, this issue may be appealed to the 
appropriate Director to be determined in the manner detailed in Sec. 
1225.11 of this part.
    (b) Final Agency Decision. When discrimination is found, the 
appropriate Director shall advise the complainant that any request for 
attorney fees or costs must be documented and submitted for review 
within 20 calendar days after his or her receipt of the final agency 
decision. The amount of such awards shall be determined under Sec. 
1225.11. In the unusual situation in which it is determined not to award 
attorney fees or other costs to a prevailing complainant, the 
appropriate Director in his or her final decision shall set forth the 
specific reasons thereof.



Sec. 1225.6  Freedom from reprisal.

    Aggrieved parties, their representatives, and witnesses will be free 
from restraint, interference, coercion, discrimination, or reprisal at 
any stage in the presentation and processing of a complaint, including 
the counseling stage described in Sec. 1225.8 of this part, or any time 
thereafter.



Sec. 1225.7  Review of allegations of reprisal.

    An aggrieved party, his or her representative, or a witness who 
alleges restraint, interference, coercion, discrimination, or reprisal 
in connection with the presentation of a complaint under this part, may, 
if covered by this part, request in writing that the allegation be 
reviewed as an individual complaint of discrimination subject to the 
procedures described in Subpart B or that the allegation be considered 
as an issue in the complaint at hand.



      Subpart B_Processing Individual Complaints of Discrimination



Sec. 1225.8  Precomplaint procedure.

    (a) An aggrieved person who believes that he or she has been subject 
to illegal dicrimination shall bring such allegations to the attention 
of the appropriate Counselor within 30 days of the alleged 
discrimination to attempt to resolve them. The process for notifying the 
appropriate Counselor is the following:
    (1) Aggrieved applicants, trainees or Volunteers who have not 
departed for overseas assignments, or who have returned to Washington 
for any administrative reason shall direct their allegations to the EO 
Director for assignment to an appropriate Counselor.
    (2) Aggrieved trainees or Volunteers overseas shall direct their 
allegations to the designated Counselor for that post.
    (3) Aggrieved applicants, trainees, and Volunteers applying for, or 
enrolled in ACTION domestic programs shall direct their allegations to 
the designated Counselor for that Region.
    (b) Upon receipt of the allegation, the Counselor or designee shall 
make whatever inquiry is deemed necessary into the facts alleged by the 
aggrieved party and shall counsel the aggrieved party for the purpose of 
attempting an informal resolution agreeable to all parties. The 
Counselor will keep a written record of his or her activities which will 
be submitted to the EO Director if a formal complaint concerning the 
matter is filed.
    (c) If after such inquiry and counseling an informal resolution to 
the allegation is not reached, the Counselor shall notify the aggrieved 
party in writing of the right to file a complaint of discrimination with 
the EO Director within 15 calendar days of the aggrieved party's receipt 
of the notice.

[[Page 43]]

    (d) The Counselor shall not reveal the identity of the aggrieved 
party who has come to him or her for consultation, except when 
authorized to do so by the aggrieved party. However, the identity of the 
aggrieved party may be revealed once the agency has accepted a complaint 
of discrimination from the aggrieved party.



Sec. 1225.9  Complaint procedure.

    (a) EO Director. (1) The EO Director must accept a complaint if the 
process set forth above has followed, and the complaint states a charge 
of illegal discrimination. The agency will extend the time limits set 
herein (a) when the complainant shows that he or she was not notified of 
the time limits and was not otherwise aware of them, or (b) the 
complainant shows that he or she was prevented by circumstances beyond 
his or her control from submitting the matter in a timely fashion, or 
(c) for other reasons considered sufficiently by the agency. At any time 
during the complaint procedure, the EO Director may cancel a complaint 
because of failure of the aggrieved party to prosecute the complaint. If 
the complaint is rejected for failure to meet one or more of the 
requirements set out in the procedure outlined in Sec. 1225.8 or is 
cancelled, the EO Director shall inform the aggrieved party in writing 
of this Final Agency Decision; that the Peace Corps or ACTION will take 
no further action; and of the right, to file a civil action as described 
in Sec. 1225.21 of this part.
    (2) Upon acceptance of the complaint and receipt of the Counselor's 
report, the EO Director shall provide for the prompt investigation of 
the complaint. Whenever possible, the person assigned to investigate the 
complaint shall occupy a position in the agency which is not, directly 
or indirectly, under the jurisdiction of the head of that part of the 
agency in which the complaint arose. The investigation shall include a 
thorough review of the circumstances under which the alleged 
discrimination occurred, and any other circumstances which may 
constitute, or appear to constitute discrimination against the 
complainant. The investigator shall compile an investigative file, which 
includes a summary of the investigation, recommended findings of fact 
and a recommended resolution of the complaint. The investigator shall 
forward the investigative file to the EO Director and shall provide the 
complainant with a copy.
    (3) The EO Director shall review the complaint file including any 
additional statements provided by the complainant, make findings of 
fact, and shall offer an adjustment of the complaint if the facts 
support the complaint. If the proposed adjustment is agreeable to all 
parties, the terms of the adjustment shall be reduced to writing, signed 
by both parties, and made part of the complaint file. A copy of the 
terms of the adjustment shall be provided the complainant. If the 
proposed adjustment of the complaint is not acceptable to the 
complainant, or the EO Director determines that such an offer is 
inappropriate, the EO Director shall forward the complaint file with a 
written notification of the findings of facts, and his or her 
recommendation of the proposed disposition of the complaint to the 
appropriate Director. The aggrieved party shall receive a copy of the 
notification and recommendation and shall be advised of the right to 
appeal the recommended disposition to the appropriate Director. Within 
ten (10) calendar days of receipt of such notice, the complainant may 
submit his or her appeal of the recommended disposition to the 
appropriate Director.
    (b) Appeal to Director. If no timely notice of appeal is received 
from the aggrieved party, the appropriate Director or designee may adopt 
the proposed disposition as the Final Agency Decision. If the aggrieved 
party appeals, the appropriate Director or designee, after review of the 
total complaint file, shall issue a decision to the aggrieved party. The 
decision of the appropriate Director shall be in writing, state the 
reasons underlying the decision, shall be the Final Agency Decision, 
shall inform the aggrieved party of the right to file a civil action as 
described in Sec. 1225.21 of this part, and, if appropriate, designate 
the procedure to be followed for the award of attorney fees or costs.

[[Page 44]]



Sec. 1225.10  Corrective action.

    When it has been determined by Final Agency Decision that the 
aggrieved party has been subjected to illegal discrimination, the 
following corrective actions may be taken:
    (a) Selection as a Trainee for aggrieved parties found to have been 
denied selection based on prohibited discrimination.
    (b) Reappointment to Volunteer service for aggrieved parties found 
to have been early-terminated as a result of prohibited discrimination. 
To the extent possible, a Volunteer will be placed in the same position 
previously held. However, reassignment to the specific country of prior 
service, or to the specific position previously held, is contingent on 
several programmatic considerations such as the continued availability 
of the position, or program in that country, and acceptance by the host 
country of such placement. If the same position is deemed to be no 
longer available, the aggrieved party will be offered a reassignment to 
a position in as similar circumstances to the position previously held, 
or to resign from service for reasons beyond his or her control. Such a 
reassignment may require both additional training and an additional two 
year commitment to volunteer service.
    (c) Provision for reasonable attorney fees and other costs incurred 
by the aggrieved party.
    (d) Such other relief as may be deemed appropriate by the Director 
of Peace Corps or ACTION.



Sec. 1225.11  Amount of attorney fees.

    (a) When a decision of the agency provides for an award of 
attorney's fees or costs, the complainant's attorney shall submit a 
verified statement of costs and attorney's fees as appropriate, to the 
agency within 20 days of receipt of the decision. A statement of 
attorney's fees shall be accompanied by an affidavit executed by the 
attorney of record itemizing the attorney's charges for legal services. 
Both the verified statement and the accompanying affidavit shall be made 
a part of the complaint file. The amount of attorney's fees or costs to 
be awarded the complainant shall be determined by agreement between the 
complainant, the complainant's representative and the appropriate 
Director. Such agreement shall immediately be reduced to writing. If the 
complainant, the representative and the agency cannot reach an agreement 
on the amount of attorney's fees or costs within 20 calendar days of 
receipt of the verified statement and accompanying affidavit, the 
appropriate Director shall issue a decision determining the amount of 
attorney fees or costs within 30 calendar days of receipt of the 
statement and affidavit. Such decision shall include the specific 
reasons for determining the amount of the award.
    (b) The amount of attorney's fees shall be made in accordance with 
the following standards: The time and labor required, the novelty and 
difficulty of the questions, the skills requisite to perform the legal 
service properly, the preclusion of other employment by the attorney due 
to acceptance of the case, the customary fee, whether the fee is fixed 
or contingent, time limitation imposed by the client or the 
circumstances, the amount involved and the results obtained, the 
experience, reputation, and ability of the attorney, the undesirability 
of the case, the nature and length of the professional relationship with 
the client, and the awards in similar cases.



         Subpart C_Processing Class Complaints of Discrimination



Sec. 1225.12  Precomplaint procedure.

    An applicant, trainee or Volunteer who believes that he or she is 
among a group of present or former Peace Corps or ACTION Volunteers, 
trainees, or applicants for volunteer service who have been illegally 
discriminated against and who wants to be an agent for the class shall 
follow those precomplaint procedures outlined in Sec. 1225.8 of this 
part.



Sec. 1225.13  Acceptance, rejection or cancellation of complaint.

    (a) Upon receipt of a class complaint, the Counselor's report, and 
any other information pertaining to timeliness or other relevant 
circumstances related to the complaint, the EO Director shall review the 
file to determine whether to

[[Page 45]]

accept or reject the complaint, or a portion thereof, for any of the 
following reasons:
    (1) It was not timely filed;
    (2) It consists of an allegation which is identical to an allegation 
contained in a previous complaint filed on behalf of the same class 
which is pending in the agency or which has been resolved or decided by 
the agency;
    (3) It is not within the purview of this subpart;
    (4) The agent failed to consult a Counselor in a timely manner;
    (5) It lacks specificity and detail;
    (6) It was not submitted in writing or was not signed by the agent;
    (7) It does not meet the following prerequisites.
    (i) The class is so numerous that a consolidated complaint of the 
members of the class is impractical;
    (ii) There are questions of fact common to the class;
    (iii) The claims of the agent of the class are representative of the 
claims of the class;
    (iv) The agent of the class, or his or her representative will 
fairly and adequately protect the interest of the class.
    (b) If an allegation is not included in the Counselor's report, the 
EO Director shall afford the agent 15 calendar days to explain whether 
the matter was discussed and if not, why he or she did not discuss the 
allegation with the Counselor. If the explanation is not satisfactory, 
the EO Director may decide to reject the allegation. If the explanation 
is satisfactory, the EO Director may require further counseling of the 
agent.
    (c) If an allegation lacks specificity and detail, or if it was not 
submitted in writing or not signed by the agent, the EO Director shall 
afford the agent 30 days from his or her receipt of notification of the 
complaint defects to resubmit an amended complaint. The EO Director may 
decide that the agency reject the complaint if the agent fails to 
provide such information within the specified time period. If the 
information provided contains new allegations outside the scope of the 
complaint, the EO Director must advise the agent how to proceed on an 
individual or class basis concerning these allegations.
    (d) The EO Director may extend the time limits for filing a 
complaint and for consulting with a Counselor when the agent, or his or 
her representative, shows that he or she was not notified of the 
prescribed time limits and was not otherwise aware of them or that he or 
she was prevented by circumstances beyond his or her control from acting 
within the time limit.
    (e) When appropriate, the EO Director may determine that a class be 
divided into subclasses and that each subclass be treated as a class, 
and the provisions of this section then shall be construed and applied 
accordingly.
    (f) The EO Director may cancel a complaint after it has been 
accepted because of failure of the agent to prosecute the complaint. 
This action may be taken only after:
    (1) The EO Director has provided the agent a written request, 
including notice of proposed cancellation, that he or she provide 
certain information or otherwise proceed with the complaint; and
    (2) Within 30 days of his or her receipt of the request.
    (g) An agent must be informed by the EO Director in a request under 
paragraph (b) or (c) of this section that his or her complaint may be 
rejected if the information is not provided.



Sec. 1225.14  Consolidation of complaints.

    The EO Director may consolidate the complaint if it involves the 
same or sufficiently similar allegations as those contained in a 
previous complaint filed on behalf of the same class which is pending in 
the agency or which has been resolved or decided by the agency.



Sec. 1225.15  Notification and opting out.

    (a) Upon acceptance of a class complaint, the agency, within 30 
calendar days, shall use reasonable means, such as delivery, mailing, 
distribution, or posting, to notify all class members of the existence 
of the class complaint.
    (b) A notice shall contain:
    (1) The name of the agency or organizational segment thereof, its 
location and the date of acceptance of the complaint;
    (2) A description of the issues accepted as part of the class 
complaint;

[[Page 46]]

    (3) An explanation that class members may remove themselves from the 
class by notifying the agency within 30 calendar days after issuance of 
the notice; and
    (4) An explanation of the binding nature of the final decision or 
resolution of the complaint.



Sec. 1225.16  Investigation and adjustment of complaint.

    The complaint shall be processed promptly after it has been 
accepted. Once a class complaint has been accepted, the procedure 
outlined in Sec. 1225.9 of this part shall apply.



Sec. 1225.17  Agency decision.

    (a) If an adjustment of the complaint cannot be made the procedures 
outlined in Sec. 1225.9 shall be followed by the EO Director except 
that any notice required to be sent to the aggrieved party shall be sent 
to the agent of the class or his or her representative.
    (b) The Final Agency Decision on a class complaint shall be binding 
on all members of the class.



Sec. 1225.18  Notification of class members of decision.

    Class members shall be notified by the agency of the final agency 
decision and corrective action, if any, using at the minimum, the same 
media employed to give notice of the existence of the class complaint. 
The notice, where appropriate, shall include information concerning the 
rights of class members to seek individual relief and of the procedures 
to be followed. Notice shall be given by the agency within ten (10) 
calendar days of the transmittal of its decision to the agent.



Sec. 1225.19  Corrective action.

    (a) When discrimination is found, Peace Corps or ACTION must take 
appropriate action to eliminate or modify the policy or practice out of 
which such discrimination arose, and provide individual corrective 
action to the agent and other class members in accordance with Sec. 
1225.10 of this part.
    (b) When discrimination is found and a class member believes that 
but for that discrimination he or she would have been accepted as a 
Volunteer or received some other volunteer service benefit, the class 
member may file a written claim with the EO Director within thirty (30) 
calendar days of notification by the agency of its decision.
    (c) The claim must include a specific, detailed statement showing 
that the claimant is a class member who was affected by an action or 
matter resulting from the discriminatory policy or practice which arose 
not more than 30 days preceding the filing of the class complaint.
    (d) The agency shall attempt to resolve the claim within sixty (60) 
calendar days after the date the claim was postmarked, or, in the 
absence of a postmark, within sixty (60) calendar days after the date it 
was received by the EO Director.



Sec. 1225.20  Claim appeals.

    (a) If the EO Director and claimant do not agree that the claimant 
is a member of the class, or upon the relief to which the claimant is 
entitled, the EO Director shall refer the claim, with recommendations 
concerning it to the appropriate Director for Final Agency Decision and 
shall so notify the claimant. The class member may submit written 
evidence to the appropriate Director concerning his or her status as a 
member of the class. Such evidence must be submitted no later than ten 
(10) calendar days after receipt of referral.
    (b) The appropriate Director shall decide the issue within thirty 
(30) days of the date of referral by the EO Director. The claimant shall 
be informed in writing of the decision and its basis and that it will be 
the Final Agency Decision on the issue.



Sec. 1225.21  Statutory rights.

    (a) A Volunteer, trainee, or applicant is authorized to file a civil 
action in an appropriate U.S. District Court:
    (1) Within thirty (30) calendar days of his or her receipt of notice 
of final action taken by the agency.
    (2) After one hundred eighty (180) calendar days from the date of 
filing a complaint with the agency if there has been no final agency 
action.
    (b) For those complaints alleging discrimination that occur outside 
the United States, the U.S. District Court

[[Page 47]]

for the District of Columbia shall be deemed the appropriate forum.



PART 1226_PROHIBITIONS ON ELECTORAL AND LOBBYING ACTIVITIES--
Table of Contents



                      Subpart A_General Provisions

Sec.
1226.1 Purpose.
1226.2 Scope.
1226.3 Definitions.

                    Subpart B_Sponsoring Organization

1226.4 General.
1226.5 Electoral, voter registration, and other activities.

                     Subpart C_Volunteer Activities

1226.6 General.
1226.7 Scope.
1226.8 Prohibited activities.
1226.9 Exceptions.

                  Subpart D_Sponsor Employee Activities

1226.10 Sponsor employees.
1226.11 Obligation of sponsors.

    Authority: 42 U.S.C. 5043.

    Source: 46 FR 8522, Jan. 27, 1981, unless otherwise noted.



                      Subpart A_General Provisions



Sec. 1226.1  Purpose.

    This part implements sections 403(a) and (b) of the Domestic 
Volunteer Service Act of 1973, Public Law 93-113, as amended, 
hereinafter referred to as the Act, pertaining to the prohibited use of 
Federal funds or involvement by certain Corporation for National and 
Community Service programs and volunteers in electoral and lobbying 
activities. This part implements those provisions of the Act, as they 
apply to agency programs and volunteers authorized under title II of the 
Act.

[80 FR 63459, Oct. 20, 2015]



Sec. 1226.2  Scope.

    This part applies to all volunteers serving in a program authorized 
by title II of the Act, including the Foster Grandparent Program, the 
Senior Companion Program, and The Retired and Senior Volunteer Program 
(RSVP). This part also applies to employees or sponsoring organizations, 
whose salaries, or other compensation, are paid, in whole or in part, 
with agency funds.

[80 FR 63459, Oct. 20, 2015]



Sec. 1226.3  Definitions.

    (a) The Act means the Domestic Volunteer Service Act of 1973, as 
amended, Pub. L. 93-113 (42 U.S.C. 4951 et seq.).
    (b) Assistance means funds, volunteers or volunteer training, which 
is paid for from funds appropriated for the purpose of supporting 
activities under the Act, and includes locally provided funds required 
by law, regulation or policy as a local contribution to activities 
authorized by the Act.
    (c) Full time when used in the context of volunteer service, means 
service of not less than 35 hours per week.
    (d) Part time when used in the context of volunteer service, means 
service that is less than full time.
    (e) Recipient or sponsor organization means any organization that 
receives assistance under the Act.
    (f) Volunteer means an individual enrolled for service in a program 
or project that is authorized by or which receives assistance under the 
Act.
    (g) Legislative body includes the United States Congress, State and 
Territorial Legislatures and locally elected or appointed bodies with 
the authority to enact laws.
    (h) Public office includes any Federal, State, local elective, or 
party office.
    (i) Party office means an elective position in a national, state or 
local organization or committees or convention of such organization, 
which has, as a principal purpose, support or opposition to candidates 
for public office.
    (j) Legislation means bills, resolutions, amendments, nominations 
and other matters pending or proposed in a legislative body and includes 
any other matter which may be the subject of action by the legislative 
body.



                    Subpart B_Sponsoring Organization



Sec. 1226.4  General.

    Under section 403 of the Act, volunteer programs may not be 
conducted in a manner which supports or results in the identification of 
such programs

[[Page 48]]

with prohibited activities. This section prescribes the nature and 
extent of involvement in such activity by an organization which would 
preclude the assignment of volunteers to the organization.



Sec. 1226.5  Electoral, voter registration, and other activities.

    Volunteers or other assistance, in any program under the Act shall 
not be assigned or provided to an organization if a principal purpose or 
activity of the organization includes any of the following activities:
    (a) Electoral Activities. Any activity designed to influence the 
outcome of elections to any public office, such as:
    (1) Actively campaigning for or against or supporting candidates for 
public office;
    (2) Raising, soliciting or collecting funds for candidates for 
public office;
    (3) Preparing, distributing or providing funds for campaign 
literature for candidates, including leaflets pamphlets, and material 
designed for the print or electronic media;
    (b) Voter Registration Activities. Any voter registration activity, 
such as
    (1) Providing transportation of individuals to voter registration 
sites;
    (2) Providing assistance to individuals in the process of 
registering to vote, including determinations of eligibility;
    (3) Disseminating official voter registration material.
    (c) Transportation to the Polls. Providing voters or prospective 
voters with transportation to the polls or raising, soliciting or 
collecting funds for such activity.
    (d) Any program sponsor which, subsequent to the receipt of any 
federal assistance under the Act, makes as one of its principal purposes 
or activities any of the activities described in Sec. 1226.5 hereof 
shall be subject to the suspension or termination of such assistance, as 
provided in 45 CFR part 1206.



                     Subpart C_Volunteer Activities



Sec. 1226.6  General.

    (a) All volunteers, full and part time, are subject to the 
prohibitions on expenditure of federal funds for partisan and 
nonpartisan electoral activities, voter registration activities and 
transportation of voters to the polls, and efforts to influence the 
passage or defeat of legislation, as contained in section 403 of the 
Act.
    (b) Full time volunteers, and certain part time volunteers as 
specified herein, are also subject to the restrictions in subchapter 
III, chapter 73 of title 5, United States Code, commonly referred to as 
the Hatch Act, as provided in section 415(b) of the Act.



Sec. 1226.7  Scope.

    The provisions in this subpart are applicable to full time 
volunteers as described in Sec. 1226.3(c), and to such part-time 
volunteers as may be otherwise specified herein. Full time volunteers 
are deemed to be acting in their capacity as volunteers:
    (a) When they are actually engaged in their volunteer assignments; 
or
    (b) Whenever they represent themselves, or may reasonably be 
perceived by others, to be performing as a volunteer.

[46 FR 8522, Jan. 27, 1981, as amended at 80 FR 63459, Oct. 20, 2015]



Sec. 1226.8  Prohibited activities.

    (a) Electoral Activity. Volunteers shall not engage in any activity 
which may, directly or indirectly, affect or influence the outcome of 
any election to public office. Volunteers are prohibited from engaging 
in activities such as:
    (1) Any activity in support of, or in opposition to a candidate for 
election to public office in a partisan or nonpartisan election;
    (2) Participating in the circulation of petitions, or the gathering 
of signatures on nominating petitions or similar documents for 
candidates for public office.
    (3) Raising, soliciting, or collecting funds for a candidate for 
public office;
    (4) Preparing, distributing or providing funds for campaign material 
for candidates, including leaflets, pamphlets, brochures and material 
designed for the print or electronic media;
    (5) Organizing political meetings or forums;
    (6) Canvassing voters on behalf of a candidate for public office;

[[Page 49]]

    (7) Raising, soliciting or collecting funds for groups that engage 
in any of the activities described in paragraphs (a) (1) through (6) of 
this section.
    (b) Voter Registration. Volunteers shall not engage in any voter 
registration activity, including:
    (1) Providing transportation of individuals to voter registration 
sites;
    (2) Providing assistance to individuals in the process of 
registering to vote, including determinations of eligibility;
    (3) The dissemination of official voter registration materials; or
    (4) Raising, soliciting or collecting funds to support activities 
described in paragraphs (b) (1) through (3) of this section.
    (c) Transportation to the Polls. Volunteers shall not engage in any 
activity to provide voters or prospective voters with transportation to 
the polls, nor shall they collect, raise, or solicit funds to support 
such activity, including securing vehicles for such activity.
    (d) Efforts to Influence Legislation. Except as provided in Sec. 
1226.9, volunteers shall not engage in any activity for the purpose of 
influencing the passage or defeat of legislation or any measures on the 
ballot at a general or special election. For example, volunteers shall 
not:
    (1) Testify or appear before legislative bodies in regard to 
proposed or pending legislation;
    (2) Make telephone calls, write letters, or otherwise contact 
legislators or legislative staff, concerning proposed or pending 
legislation for the purpose of influencing the passage or defeat of such 
legislation;
    (3) Draft legislation;
    (4) Prepare legislative testimony;
    (5) Prepare letters to be mailed by third parties to members of 
legislative bodies concerning proposed or pending legislation;
    (6) Prepare or distribute any form of material, including pamphlets, 
newspaper columns, and material designed for either the print or 
electronic media, which urges recipients to contact their legislator or 
otherwise seek passage or defeat of legislation;
    (7) Raise, collect or solicit funds to support efforts to affect the 
passage or defeat of legislation;
    (8) Engage in any of the activities set forth in paragraphs (d) (1) 
through (7) of this section for the purpose of influencing executive 
action in approving or vetoing legislation.
    (9) Circulate petitions, gather signatures on petitions, or urge or 
organize others to do so, which seek to have measures placed on the 
ballot at a general or special election.
    (10) Engage in any of the activities enumerated in paragraphs (d) 
(1) through (9) of this section in regard to the passage or defeat of 
any measure on the ballot in a general or special election.



Sec. 1226.9  Exceptions.

    (a) A volunteer may draft, review, testify or make representations 
to a legislative body regarding a legislative measure upon request of 
the legislative body, a committee, or a member thereof, provided that:
    (1) The request to draft, review, testify or make representations is 
in writing, addressed to the volunteer or the organization to which the 
volunteer is assigned or placed, and signed by a member or members of 
the legislative body.
    (2) The request states the type of representation or assistance 
requested and the issue to be addressed.
    (3) The volunteer or the program sponsor provides a copy of such 
request to the State Director.
    (b) The volunteer may draft, review, testify, or make a written 
representation to a legislative body regarding an authorization or 
appropriation measure directly affecting the operation of the project or 
program to which he or she is assigned: Provided:
    (1) The sponsor organization provides notification to the State 
Director on a quarterly basis of all activity occurring pursuant to this 
exception.
    (2) The legislative measure relates to the funding of the project or 
program or affects the existence or basic structure of the project or 
program.
    (c) Notwithstanding the foregoing exceptions, any activity by a 
volunteer pursuant to paragraph (b) (1) or (2) of this section shall be 
incidental to his or her regular work assignment.

[[Page 50]]



                  Subpart D_Sponsor Employee Activities



Sec. 1226.10  Sponsor employees.

    Sponsor employees whose salaries or other compensation are paid, in 
whole or in part, with agency funds are subject to the restrictions 
described in Sec. 1226.8 and the exceptions in Sec. 1226.9:
    (a) Whenever they are engaged in an activity which is supported by 
Corporation for National and Community Service funds; or
    (b) Whenever they identify themselves as acting in their capacity as 
an official of a project which receives Corporation for National and 
Community Service funds, or could reasonably be perceived by others as 
acting in such capacity.

[46 FR 8522, Jan. 27, 1981. Redesignated and revised at 80 FR 63459, 
Oct. 20, 2015]



Sec. 1226.11  Obligations of sponsors.

    (a) It shall be the obligation of program sponsors to ensure that 
they:
    (1) Fully understand the restrictions on volunteer activity set 
forth herein;
    (2) Provide training to volunteers on the restrictions and ensure 
that all other training materials used in training volunteers are fully 
consistent with these restrictions;
    (3) Monitor on a continuing basis the activity of volunteers for 
compliance with this provision;
    (4) Report all violations, or questionable situations, immediately 
to the State Director.
    (b) Failure of a sponsor to meet the requirements set forth in 
paragraph (a) of this section, or a violation of the rules contained 
herein by either the sponsor, the sponsor's employees subject to Sec. 
1226.12 or the volunteers assigned to the sponsor, at any time during 
the course of the grant may be deemed to be a material failure to comply 
with the terms and conditions of the grant as that term is used in 45 
CFR 1206.1 regarding suspension and termination of assistance or a 
violation of the Project Memorandum of Agreement, as applicable. The 
sponsor shall be subject to the procedures and penalties contained in 45 
CFR 1206.1.
    (c) Violation by a volunteer of any of the rules and regulations set 
forth herein may be cause for suspension or termination as set forth in 
45 CFR 1213.5-5(2) or other disciplinary action.

[46 FR 8522, Jan. 27, 1981. Redesignated at 80 FR 63459, Oct. 20, 2015]



PART 1230_NEW RESTRICTIONS ON LOBBYING--Table of Contents



                            Subpart A_General

Sec.
1230.100 Conditions on use of funds.
1230.105 Definitions.
1230.110 Certification and disclosure.

                  Subpart B_Activities by Own Employees

1230.200 Agency and legislative liaison.
1230.205 Professional and technical services.
1230.210 Reporting.

            Subpart C_Activities by Other Than Own Employees

1230.300 Professional and technical services.

                   Subpart D_Penalties and Enforcement

1230.400 Penalties.
1230.405 Penalty procedures.
1230.410 Enforcement.

                          Subpart E_Exemptions

1230.500 Secretary of Defense.

                        Subpart F_Agency Reports

1230.600 Semi-annual compilation.
1230.605 Inspector General report.

Appendix A to Part 1230--Certification Regarding Lobbying
Appendix B to Part 1230--Disclosure Form To Report Lobbying

    Authority: Section 319, Pub. L. 101-121 (31 U.S.C. 1352); Pub. L. 
93-113; 42 U.S.C. 4951, et seq.; 42 U.S.C. 5060.

    Source: 55 FR 6737, 6755, Feb. 26, 1990, unless otherwise noted.

    Cross Reference: See also Office of Management and Budget notice 
published at 54 FR 52306, December 20, 1989.



                            Subpart A_General



Sec. 1230.100  Conditions on use of funds.

    (a) No appropriated funds may be expended by the recipient of a 
Federal contract, grant, loan, or cooperative ageement to pay any person 
for influencing or attempting to influence an officer or employee of any 
agency, a

[[Page 51]]

Member of Congress, an officer or employee of Congress, or an employee 
of a Member of Congress in connection with any of the following covered 
Federal actions: the awarding of any Federal contract, the making of any 
Federal grant, the making of any Federal loan, the entering into of any 
cooperative agreement, and the extension, continuation, renewal, 
amendment, or modification of any Federal contract, grant, loan, or 
cooperative agreement.
    (b) Each person who requests or receives from an agency a Federal 
contract, grant, loan, or cooperative agreement shall file with that 
agency a certification, set forth in Appendix A, that the person has not 
made, and will not make, any payment prohibited by paragraph (a) of this 
section.
    (c) Each person who requests or receives from an agency a Federal 
contract, grant, loan, or a cooperative agreement shall file with that 
agency a disclosure form, set forth in Appendix B, if such person has 
made or has agreed to make any payment using nonappropriated funds (to 
include profits from any covered Federal action), which would be 
prohibited under paragraph (a) of this section if paid for with 
appropriated funds.
    (d) Each person who requests or receives from an agency a commitment 
providing for the United States to insure or guarantee a loan shall file 
with that agency a statement, set forth in Appendix A, whether that 
person has made or has agreed to make any payment to influence or 
attempt to influence an officer or employee of any agency, a Member of 
Congress, an officer or employee of Congress, or an employee of a Member 
of Congress in connection with that loan insurance or guarantee.
    (e) Each person who requests or receives from an agency a commitment 
providing for the United States to insure or guarantee a loan shall file 
with that agency a disclosure form, set forth in Appendix B, if that 
person has made or has agreed to make any payment to influence or 
attempt to influence an officer or employee of any agency, a Member of 
Congress, an officer or employee of Congress, or an employee of a Member 
of Congress in connection with that loan insurance or guarantee.



Sec. 1230.105  Definitions.

    For purposes of this part:
    (a) Agency, as defined in 5 U.S.C. 552(f), includes Federal 
executive departments and agencies as well as independent regulatory 
commissions and Government corporations, as defined in 31 U.S.C. 
9101(1).
    (b) Covered Federal action means any of the following Federal 
actions:
    (1) The awarding of any Federal contract;
    (2) The making of any Federal grant;
    (3) The making of any Federal loan;
    (4) The entering into of any cooperative agreement; and,
    (5) The extension, continuation, renewal, amendment, or modification 
of any Federal contract, grant, loan, or cooperative agreement.

Covered Federal action does not include receiving from an agency a 
commitment providing for the United States to insure or guarantee a 
loan. Loan guarantees and loan insurance are addressed independently 
within this part.
    (c) Federal contract means an acquisition contract awarded by an 
agency, including those subject to the Federal Acquisition Regulation 
(FAR), and any other acquisition contract for real or personal property 
or services not subject to the FAR.
    (d) Federal cooperative agreement means a cooperative agreement 
entered into by an agency.
    (e) Federal grant means an award of financial assistance in the form 
of money, or property in lieu of money, by the Federal Government or a 
direct appropriation made by law to any person. The term does not 
include technical assistance which provides services instead of money, 
or other assistance in the form of revenue sharing, loans, loan 
guarantees, loan insurance, interest subsidies, insurance, or direct 
United States cash assistance to an individual.
    (f) Federal loan means a loan made by an agency. The term does not 
include loan guarantee or loan insurance.
    (g) Indian tribe and tribal organization have the meaning provided 
in section 4 of the Indian Self-Determination and Education Assistance 
Act (25 U.S.C. 450B). Alaskan Natives are included

[[Page 52]]

under the definitions of Indian tribes in that Act.
    (h) Influencing or attempting to influence means making, with the 
intent to influence, any communication to or appearance before an 
officer or employee or any agency, a Member of Congress, an officer or 
employee of Congress, or an employee of a Member of Congress in 
connection with any covered Federal action.
    (i) Loan guarantee and loan insurance means an agency's guarantee or 
insurance of a loan made by a person.
    (j) Local government means a unit of government in a State and, if 
chartered, established, or otherwise recognized by a State for the 
performance of a governmental duty, including a local public authority, 
a special district, an intrastate district, a council of governments, a 
sponsor group representative organization, and any other instrumentality 
of a local government.
    (k) Officer or employee of an agency includes the following 
individuals who are employed by an agency:
    (1) An individual who is appointed to a position in the Government 
under title 5, U.S. Code, including a position under a temporary 
appointment;
    (2) A member of the uniformed services as defined in section 101(3), 
title 37, U.S. Code;
    (3) A special Government employee as defined in section 202, title 
18, U.S. Code; and,
    (4) An individual who is a member of a Federal advisory committee, 
as defined by the Federal Advisory Committee Act, title 5, U.S. Code 
appendix 2.
    (l) Person means an individual, corporation, company, association, 
authority, firm, partnership, society, State, and local government, 
regardless of whether such entity is operated for profit or not for 
profit. This term excludes an Indian tribe, tribal organization, or any 
other Indian organization with respect to expenditures specifically 
permitted by other Federal law.
    (m) Reasonable compensation means, with respect to a regularly 
employed officer or employee of any person, compensation that is 
consistent with the normal compensation for such officer or employee for 
work that is not furnished to, not funded by, or not furnished in 
cooperation with the Federal Government.
    (n) Reasonable payment means, with respect to perfessional and other 
technical services, a payment in an amount that is consistent with the 
amount normally paid for such services in the private sector.
    (o) Recipient includes all contractors, subcontractors at any tier, 
and subgrantees at any tier of the recipient of funds received in 
connection with a Federal contract, grant, loan, or cooperative 
agreement. The term excludes an Indian tribe, tribal organization, or 
any other Indian organization with respect to expenditures specifically 
permitted by other Federal law.
    (p) Regularly employed means, with respect to an officer or employee 
of a person requesting or receiving a Federal contract, grant, loan, or 
cooperative agreement or a commitment providing for the United States to 
insure or guarantee a loan, an officer or employee who is employed by 
such person for at least 130 working days within one year immediately 
preceding the date of the submission that initiates agency consideration 
of such person for receipt of such contract, grant, loan, cooperative 
agreement, loan insurance commitment, or loan guarantee commitment. An 
officer or employee who is employed by such person for less than 130 
working days within one year immediately preceding the date of the 
submission that initiates agency consideration of such person shall be 
considered to be regularly employed as soon as he or she is employed by 
such person for 130 working days.
    (q) State means a State of the United States, the District of 
Columbia, the Commonwealth of Puerto Rico, a territory or possession of 
the United States, an agency or instrumentality of a State, and a multi-
State, regional, or interstate entity having governmental duties and 
powers.



Sec. 1230.110  Certification and disclosure.

    (a) Each person shall file a certification, and a disclosure form, 
if required, with each submission that initiates agency consideration of 
such person for:

[[Page 53]]

    (1) Award of a Federal contract, grant, or cooperative agreement 
exceeding $100,000; or
    (2) An award of a Federal loan or a commitment providing for the 
United States to insure or guarantee a loan exceeding $150,000.
    (b) Each person shall file a certification, and a disclosure form, 
if required, upon receipt by such person of:
    (1) A Federal contract, grant, or cooperative agreement exceeding 
$100,000; or
    (2) A Federal loan or a commitment providing for the United States 
to insure or guarantee a loan exceeding $150,000,

unless such person previously filed a certification, and a disclosure 
form, if required, under paragraph (a) of this section.
    (c) Each person shall file a disclosure form at the end of each 
calendar quarter in which there occurs any event that requires 
disclosure or that materially affects the accuracy of the information 
contained in any disclosure form previously filed by such person under 
paragraphs (a) or (b) of this section. An event that materially affects 
the accuracy of the information reported includes:
    (1) A cumulative increase of $25,000 or more in the amount paid or 
expected to be paid for influencing or attempting to influence a covered 
Federal action; or
    (2) A change in the person(s) or individual(s) influencing or 
attempting to influence a covered Federal action; or,
    (3) A change in the officer(s), employee(s), or Member(s) contacted 
to influence or attempt to influence a covered Federal action.
    (d) Any person who requests or receives from a person referred to in 
paragraph (a) or (b) of this section:
    (1) A subcontract exceeding $100,000 at any tier under a Federal 
contract;
    (2) A subgrant, contract, or subcontract exceeding $100,000 at any 
tier under a Federal grant;
    (3) A contract or subcontract exceeding $100,000 at any tier under a 
Federal loan exceeding $150,000; or,
    (4) A contract or subcontract exceeding $100,000 at any tier under a 
Federal cooperative agreement,

shall file a certification, and a disclosure form, if required, to the 
next tier above.
    (e) All disclosure forms, but not certifications, shall be forwarded 
from tier to tier until received by the person referred to in paragraph 
(a) or (b) of this section. That person shall forward all disclosure 
forms to the agency.
    (f) Any certification or disclosure form filed under paragraph (e) 
of this section shall be treated as a material representation of fact 
upon which all receiving tiers shall rely. All liability arising from an 
erroneous representation shall be borne solely by the tier filing that 
representation and shall not be shared by any tier to which the 
erroneous representation is forwarded. Submitting an erroneous 
certification or disclosure constitutes a failure to file the required 
certification or disclosure, respectively. If a person fails to file a 
required certification or disclosure, the United States may pursue all 
available remedies, including those authorized by section 1352, title 
31, U.S. Code.
    (g) For awards and commitments in process prior to December 23, 
1989, but not made before that date, certifications shall be required at 
award or commitment, covering activities occurring between December 23, 
1989, and the date of award or commitment. However, for awards and 
commitments in process prior to the December 23, 1989 effective date of 
these provisions, but not made before December 23, 1989, disclosure 
forms shall not be required at time of award or commitment but shall be 
filed within 30 days.
    (h) No reporting is required for an activity paid for with 
appropriated funds if that activity is allowable under either subpart B 
or C.



                  Subpart B_Activities by Own Employees



Sec. 1230.200  Agency and legislative liaison.

    (a) The prohibition on the use of appropriated funds, in Sec. 
1230.100 (a), does not apply in the case of a payment of reasonable 
compensation made to an officer or employee of a person requesting or 
receiving a Federal contract, grant, loan, or cooperative agreement

[[Page 54]]

if the payment is for agency and legislative liaison activities not 
directly related to a covered Federal action.
    (b) For purposes of paragraph (a) of this section, providing any 
information specifically requested by an agency or Congress is allowable 
at any time.
    (c) For purposes of paragraph (a) of this section, the following 
agency and legislative liaison activities are allowable at any time only 
where they are not related to a specific solicitation for any covered 
Federal action:
    (1) Discussing with an agency (including individual demonstrations) 
the qualities and characteristics of the person's products or services, 
conditions or terms of sale, and service capabilities; and,
    (2) Technical discussions and other activities regarding the 
application or adaptation of the person's products or services for an 
agency's use.
    (d) For purposes of paragraph (a) of this section, the following 
agencies and legislative liaison activities are allowable only where 
they are prior to formal solicitation of any covered Federal action:
    (1) Providing any information not specifically requested but 
necessary for an agency to make an informed decision about initiation of 
a covered Federal action;
    (2) Technical discussions regarding the preparation of an 
unsolicited proposal prior to its official submission; and,
    (3) Capability presentations by persons seeking awards from an 
agency pursuant to the provisions of the Small Business Act, as amended 
by Pub. L. 95-507 and other subsequent amendments.
    (e) Only those activities expressly authorized by this section are 
allowable under this section.



Sec. 1230.205  Professional and technical services.

    (a) The prohibition on the use of appropriated funds, in Sec. 
1230.100 (a), does not apply in the case of a payment of reasonable 
compensation made to an officer or employee of a person requesting or 
receiving a Federal contract, grant, loan, or cooperative agreement or 
an extension, continuation, renewal, amendment, or modification of a 
Federal contract, grant, loan, or cooperative agreement if payment is 
for professional or technical services rendered directly in the 
preparation, submission, or negotiation of any bid, proposal, or 
application for that Federal contract, grant, loan, or cooperative 
agreement or for meeting requirements imposed by or pursuant to law as a 
condition for receiving that Federal contract, grant, loan, or 
cooperative agreement.
    (b) For purposes of paragraph (a) of this section, ``professional 
and technical services'' shall be limited to advice and analysis 
directly applying any professional or technical discipline. For example, 
drafting of a legal document accompanying a bid or proposal by a lawyer 
is allowable. Similarly, technical advice provided by an engineer on the 
performance or operational capability of a piece of equipment rendered 
directly in the negotiation of a contract is allowable. However, 
communications with the intent to influence made by a professional (such 
as a licensed lawyer) or a technical person (such as a licensed 
accountant) are not allowable under this section unless they provide 
advice and analysis directly applying their professional or technical 
expertise and unless the advice or analysis is rendered directly and 
solely in the preparation, submission or negotiation of a covered 
Federal action. Thus, for example, communications with the intent to 
influence made by a lawyer that do not provide legal advice or analysis 
directly and solely related to the legal aspects of his or her client's 
proposal, but generally advocate one proposal over another are not 
allowable under this section because the lawyer is not providing 
professional legal services. Similarly, communications with the intent 
to influence made by an engineer providing an engineering analysis prior 
to the preparation or submission of a bid or proposal are not allowable 
under this section since the engineer is providing technical services 
but not directly in the preparation, submission or negotiation of a 
covered Federal action.
    (c) Requirements imposed by or pursuant to law as a condition for 
receiving a covered Federal award include

[[Page 55]]

those required by law or regulation, or reasonably expected to be 
required by law or regulation, and any other requirements in the actual 
award documents.
    (d) Only those services expressly authorized by this section are 
allowable under this section.



Sec. 1230.210  Reporting.

    No reporting is required with respect to payments of reasonable 
compensation made to regularly employed officers or employees of a 
person.



            Subpart C_Activities by Other Than Own Employees



Sec. 1230.300  Professional and technical services.

    (a) The prohibition on the use of appropriated funds, in Sec. 
1230.100 (a), does not apply in the case of any reasonable payment to a 
person, other than an officer or employee of a person requesting or 
receiving a covered Federal action, if the payment is for professional 
or technical services rendered directly in the preparation, submission, 
or negotiation of any bid, proposal, or application for that Federal 
contract, grant, loan, or cooperative agreement or for meeting 
requirements imposed by or pursuant to law as a condition for receiving 
that Federal contract, grant, loan, or cooperative agreement.
    (b) The reporting requirements in Sec. 1230.110 (a) and (b) 
regarding filing a disclosure form by each person, if required, shall 
not apply with respect to professional or technical services rendered 
directly in the preparation, submission, or negotiation of any 
commitment providing for the United States to insure or guarantee a 
loan.
    (c) For purposes of paragraph (a) of this section, ``professional 
and technical services'' shall be limited to advice and analysis 
directly applying any professional or technical discipline. For example, 
drafting or a legal document accompanying a bid or proposal by a lawyer 
is allowable. Similarly, technical advice provided by an engineer on the 
performance or operational capability of a piece of equipment rendered 
directly in the negotiation of a contract is allowable. However, 
communications with the intent to influence made by a professional (such 
as a licensed lawyer) or a technical person (such as a licensed 
accountant) are not allowable under this section unless they provide 
advice and analysis directly applying their professional or technical 
expertise and unless the advice or analysis is rendered directly and 
solely in the preparation, submission or negotiation of a covered 
Federal action. Thus, for example, communications with the intent to 
influence made by a lawyer that do not provide legal advice or analysis 
directly and solely related to the legal aspects of his or her client's 
proposal, but generally advocate one proposal over another are not 
allowable under this section because the lawyer is not providing 
professional legal services. Similarly, communications with the intent 
to influence made by an engineer providing an engineering analysis prior 
to the preparation or submission of a bid or proposal are not allowable 
under this section since the engineer is providing technical services 
but not directly in the preparation, submission or negotiation of a 
covered Federal action.
    (d) Requirements imposed by or pursuant to law as a condition for 
receiving a covered Federal award include those required by law or 
regulation, or reasonably expected to be required by law or regulation, 
and any other requirements in the actual award documents.
    (e) Persons other than officers or employees of a person requesting 
or receiving a covered Federal action include consultants and trade 
associations.
    (f) Only those services expressly authorized by this section are 
allowable under this section.



                   Subpart D_Penalties and Enforcement



Sec. 1230.400  Penalties.

    (a) Any person who makes an expenditure prohibited herein shall be 
subject to a civil penalty of not less than $19,246 and not more than 
$192,459 for each such expenditure.

[[Page 56]]

    (b) Any person who fails to file or amend the disclosure form (see 
Appendix B) to be filed or amended if required herein, shall be subject 
to a civil penalty of not less than $19,246 and not more than $192,459 
for each such failure.
    (c) A filing or amended filing on or after the date on which an 
administrative action for the imposition of a civil penalty is commenced 
does not prevent the imposition of such civil penalty for a failure 
occurring before that date. An administrative action is commenced with 
respect to a failure when an investigating official determines in 
writing to commence an investigation of an allegation of such failure.
    (d) In determining whether to impose a civil penalty, and the amount 
of any such penalty, by reason of a violation by any person, the agency 
shall consider the nature, circumstances, extent, and gravity of the 
violation, the effect on the ability of such person to continue in 
business, any prior violations by such person, the degree of culpability 
of such person, the ability of the person to pay the penalty, and such 
other matters as may be appropriate.
    (e) First offenders under paragraph (a) or (b) of this section shall 
be subject to a civil penalty of $19,246, absent aggravating 
circumstances. Second and subsequent offenses by persons shall be 
subject to an appropriate civil penalty between $19,246 and $192,459, as 
determined by the agency head or his or her designee.
    (f) An imposition of a civil penalty under this section does not 
prevent the United States from seeking any other remedy that may apply 
to the same conduct that is the basis for the imposition of such civil 
penalty.

[55 FR 6737, 6755, Feb. 26, 1990, as amended at 81 FR 40820, June 23, 
2016; 82 FR 1607, Jan. 6, 2017]



Sec. 1230.405  Penalty procedures.

    Agencies shall impose and collect civil penalties pursuant to the 
provisions of the Program Fraud and Civil Remedies Act, 31 U.S.C. 
sections 3803 (except subsection (c)), 3804, 3805, 3806, 3807, 3808, and 
3812, insofar as these provisions are not inconsistent with the 
requirements herein.



Sec. 1230.410  Enforcement.

    The head of each agency shall take such actions as are necessary to 
ensure that the provisions herein are vigorously implemented and 
enforced in that agency.



                          Subpart E_Exemptions



Sec. 1230.500  Secretary of Defense.

    (a) The Secretary of Defense may exempt, on a case-by-case basis, a 
covered Federal action from the prohibition whenever the Secretary 
determines, in writing, that such an exemption is in the national 
interest. The Secretary shall transmit a copy of each such written 
exemption to Congress immediately after making such a determination.
    (b) The Department of Defense may issue supplemental regulations to 
implement paragraph (a) of this section.



                        Subpart F_Agency Reports



Sec. 1230.600  Semi-annual compilation.

    (a) The head of each agency shall collect and compile the disclosure 
reports (see Appendix B) and, on May 31 and November 30 of each year, 
submit to the Secretary of the Senate and the Clerk of the House of 
Representatives a report containing a compilation of the information 
contained in the disclosure reports received during the six-month period 
ending on March 31 or September 30, respectively, of that year.
    (b) The report, including the compilation, shall be available for 
public inspection 30 days after receipt of the report by the Secretary 
and the Clerk.
    (c) Information that involves intelligence matters shall be reported 
only to the Select Committee on Intelligence of the Senate, the 
Permanent Select Committee on Intelligence of the House of 
Representatives, and the Committees on Appropriations of the Senate and 
the House of Representatives in accordance with procedures agreed to by 
such committees. Such information shall not be available for public 
inspection.
    (d) Information that is classified under Executive Order 12356 or 
any successor order shall be reported only to

[[Page 57]]

the Committee on Foreign Relations of the Senate and the Committee on 
Foreign Affairs of the House of Representatives or the Committees on 
Armed Services of the Senate and the House of Representatives (whichever 
such committees have jurisdiction of matters involving such information) 
and to the Committees on Appropriations of the Senate and the House of 
Representatives in accordance with procedures agreed to by such 
committees. Such information shall not be available for public 
inspection.
    (e) The first semi-annual compilation shall be submitted on May 31, 
1990, and shall contain a compilation of the disclosure reports received 
from December 23, 1989 to March 31, 1990.
    (f) Major agencies, designated by the Office of Management and 
Budget (OMB), are required to provide machine-readable compilations to 
the Secretary of the Senate and the Clerk of the House of 
Representatives no later than with the compilations due on May 31, 1991. 
OMB shall provide detailed specifications in a memorandum to these 
agencies.
    (g) Non-major agencies are requested to provide machine-readable 
compilations to the Secretary of the Senate and the Clerk of the House 
of Representatives.
    (h) Agencies shall keep the originals of all disclosure reports in 
the official files of the agency.



Sec. 1230.605  Inspector General report.

    (a) The Inspector General, or other official as specified in 
paragraph (b) of this section, of each agency shall prepare and submit 
to Congress each year, commencing with submission of the President's 
Budget in 1991, an evaluation of the compliance of that agency with, and 
the effectiveness of, the requirements herein. The evaluation may 
include any recommended changes that may be necessary to strengthen or 
improve the requirements.
    (b) In the case of an agency that does not have an Inspector 
General, the agency official comparable to an Inspector General shall 
prepare and submit the annual report, or, if there is no such comparable 
official, the head of the agency shall prepare and submit the annual 
report.
    (c) The annual report shall be submitted at the same time the agency 
submits its annual budget justifications to Congress.
    (d) The annual report shall include the following: All alleged 
violations relating to the agency's covered Federal actions during the 
year covered by the report, the actions taken by the head of the agency 
in the year covered by the report with respect to those alleged 
violations and alleged violations in previous years, and the amounts of 
civil penalties imposed by the agency in the year covered by the report.



     Sec. Appendix A to Part 1230--Certification Regarding Lobbying

 Certification for Contracts, Grants, Loans, and Cooperative Agreements

    The undersigned certifies, to the best of his or her knowledge and 
belief, that:
    (1) No Federal appropriated funds have been paid or will be paid, by 
or on behalf of the undersigned, to any person for influencing or 
attempting to influence an officer or employee of an agency, a Member of 
Congress, an officer or employee of Congress, or an employee of a Member 
of Congress in connection with the awarding of any Federal contract, the 
making of any Federal grant, the making of any Federal loan, the 
entering into of any cooperative agreement, and the extension, 
continuation, renewal, amendment, or modification of any Federal 
contract, grant, loan, or cooperative agreement.
    (2) If any funds other than Federal appropriated funds have been 
paid or will be paid to any person for influencing or attempting to 
influence an officer or employee of any agency, a Member of Congress, an 
officer or employee of Congress, or an employee of a Member of Congress 
in connection with this Federal contract, grant, loan, or cooperative 
agreement, the undersigned shall complete and submit Standard Form-LLL, 
``Disclosure Form to Report Lobbying,'' in accordance with its 
instructions.
    (3) The undersigned shall require that the language of this 
certification be included in the award documents for all subawards at 
all tiers (including subcontracts, subgrants, and contracts under 
grants, loans, and cooperative agreements) and that all subrecipients 
shall certify and disclose accordingly.

    This certification is a material representation of fact upon which 
reliance was placed when this transaction was made or entered into. 
Submission of this certification is a prerequisite for making or 
entering into this transaction imposed by section 1352, title 31, U.S. 
Code. Any person who fails to file the required certification shall be 
subject to a

[[Page 58]]

civil penalty of not less than $19,246 and not more than $192,459 for 
each such failure.

            Statement for Loan Guarantees and Loan Insurance

    The undersigned states, to the best of his or her knowledge and 
belief, that:
    If any funds have been paid or will be paid to any person for 
influencing or attempting to influence an officer or employee of any 
agency, a Member of Congress, an officer or employee of Congress, or an 
employee of a Member of Congress in connection with this commitment 
providing for the United States to insure or guarantee a loan, the 
undersigned shall complete and submit Standard Form-LLL, ``Disclosure 
Form to Report Lobbying,'' in accordance with its instructions.
    Submission of this statement is a prerequisite for making or 
entering into this transaction imposed by section 1352, title 31, U.S. 
Code. Any person who fails to file the required statement shall be 
subject to a civil penalty of not less than $19,246 and not more than 
$192,459 for each such failure.

[55 FR 6737, 6755, Feb. 26, 1990, as amended at 81 FR 40820, June 23, 
2016; 82 FR 1607, Jan. 6, 2017]

[[Page 59]]



    Sec. Appendix B to Part 1230--Disclosure Form To Report Lobbying
[GRAPHIC] [TIFF OMITTED] TR24OC02.007


[[Page 60]]


[GRAPHIC] [TIFF OMITTED] TR24OC02.008


[[Page 61]]


[GRAPHIC] [TIFF OMITTED] TR24OC02.009


[[Page 62]]





PART 1232_NONDISCRIMINATION ON BASIS OF HANDICAP IN PROGRAMS 
OR ACTIVITIES RECEIVING FEDERAL FINANCIAL ASSISTANCE--
Table of Contents



                      Subpart A_General Provisions

Sec.
1232.1 Purpose.
1232.2 Application.
1232.3 Definitions.
1232.4 General prohibitions against discrimination.
1232.5 Assurances required.
1232.6 Notice.
1232.7 Remedial action, voluntary action and self-evaluation.
1232.8 Effect of state or local law.

          Subpart B_Employment and Volunteer Service Practices

1232.9 General prohibitions against employment and volunteer service 
          discrimination.
1232.10 Reasonable accommodation.
1232.11 Employment and volunteer selection criteria.
1232.12 Preemployment or pre-selection inquiries.

                         Subpart C_Accessibility

1232.13 General requirement concerning accessibility.
1232.14 Existing facilities.
1232.15 New construction.

                          Subpart D_Procedures

1232.16 Procedures.

    Authority: 29 U.S.C. 794.

    Source: 44 FR 31018, May 30, 1979, unless otherwise noted.



                      Subpart A_General Provisions



Sec. 1232.1  Purpose.

    The purpose of this part is to effectuate section 504 of the 
Rehabilitation Act of 1973, which is designed to eliminate 
discrimination on the basis of handicap in any program or activity 
receiving Federal financial assistance.



Sec. 1232.2  Application.

    This part applies to each recipient of Federal financial assistance 
from ACTION and to each program or activity that receives such 
assistance, including, but not limited to VISTA, University Year for 
ACTION (UYA), Senior Companion Program (SCP), Foster Grandparent Program 
(FGP) and Retired Senior Volunteer Program (RSVP). This part does not 
apply to recipients outside the United States which receive financial 
assistance under the Peace Corps Act, 22 U.S.C. 2501, Pub. L. 87-293, as 
amended.

[44 FR 31018, May 30, 1979, as amended at 68 FR 51388, Aug. 26, 2003]



Sec. 1232.3  Definitions.

    As used in this part the term:
    (a) The Act means the Rehabilitation Act of 1973. Pub. L. 93-112, as 
amended by the Rehabilitation Act Amendments of 1974, Pub. L. 93-516, 
and the Rehabilitation Act Amendments of 1978, Pub. L. 95-602.
    (b) Section 504 means section 504 of the Act.
    (c) Director means the Director of ACTION.
    (d) Recipient means any state or its political subdivision, any 
instrumentality of a state or its political subdivision, any public or 
private agency, institution, organization, or other entity, or any 
person to which Federal financial assistance is extended directly or 
through another recipient, including any successor, assignee, or 
transferee of a recipient, but excluding the ultimate beneficiary of the 
assistance.
    (e) Applicant for assistance means one who submits an application, 
request, or plan required to be approved by an ACTION official or by a 
recipient as a condition to becoming a recipient.
    (f) Federal financial assistance means any grant, loan, contract 
(other than a procurement contract or a contract of insurance or 
guaranty), or any other arrangement which provides or otherwise makes 
available assistance in the form of:
    (1) Funds;
    (2) Services of Federal personnel;
    (3) Real and personal property or any interest in or use of such 
property, including:
    (i) Transfers or leases of such property for less than fair market 
value or for reduced consideration; and
    (ii) Proceeds from a subsequent transfer or lease of such property 
if the Federal share of its fair market value

[[Page 63]]

is not returned to the Federal Government.
    (4) A Federal agreement, arrangement or other contract which has as 
one of its purposes the provision of assistance, including the provision 
of volunteers under the Domestic Volunteer Service Act of 1973, 42 
U.S.C. 4951, Pub. L. 93-113, as amended.
    (g) Facility means all or any portion of buildings, structures, 
equipment, roads, walks, parking lots, or other real or personal 
property or interest in such property.
    (h) Handicapped person.
    (1) Handicapped person means any person who has a physical or mental 
impairment that substantially limits one or more major life activities, 
has a record of such an impairment, or is regarded as having such an 
impairment, except that as it relates to employment or volunteer service 
the term ``handicapped person'' does not include any individual who is 
an alcoholic or drug abuser whose current use of alcohol or drugs 
prevents such individual from performing the duties of the job in 
question or whose employment or volunteer service, by reason of such 
current alcohol or drug abuse, would constitute a direct threat to 
property or the safety of others.
    (2) As used in paragraph (h)(1) of this section, the phrase:
    (i) Physical or mental impairment means (A) any physiological 
disorder or condition, cosmetic disfigurement, or anatomical loss 
affecting one or more of the following body systems: Neurological; 
musculoskeletal; special sense organs; respiratory, including speech 
organs; cardiovascular; reproductive; digestive; genitourinary; hemic 
and lymphatic; skin; and endocrine; or (B) any mental or psychological 
disorder, such as mental retardation, organic brain syndrome, emotional 
or mental illness, and specific learning disabilities. The term 
``physical or mental impairment'' includes, but is not limited to, such 
diseases and conditions as orthopedic, visual, speech, and hearing 
impairments, cerebral palsy, epilepsy, muscular dystrophy, multiple 
sclerosis, cancer, heart disease, diabetes, mental retardation, 
emotional illness, drug addiction and alcoholism.
    (ii) Major life activities means functions such as caring for one's 
self, performing manual tasks, walking, seeing, hearing, speaking, 
breathing, learning, and working.
    (iii) Has a record of such an impairment means has a history of, or 
has been misclassified as having, a mental or physical impairment that 
substantially limits one or more major life activities.
    (iv) Is regarded as having an impairment means (A) has a physical or 
mental impairment that does not substantially limit major life 
activities but is treated by a recipient as constituting such a 
limitation; (B) has a physical or mental impairment that substantially 
limits major life activities only as a result of the attitudes of others 
toward such impairment; or (C) has none of the impairments defined in 
paragraph (h)(2)(i) of this section but is treated by a recipient as 
having such an impairment.
    (i) Qualified handicapped person means (1) with respect to 
employment or volunteer service, a handicapped person who, with 
reasonable accommodation, can perform the essential functions of the job 
or assignment in question; and (2) with respect to services, a 
handicapped person who meets the essential eligibility requirements for 
the receipt of such services.
    (j) Handicap means any condition or characteristic that renders a 
person a handicapped person as defined in paragraph (h) of this section.
    (k) Volunteer and ``Volunteer service'' refers to any person serving 
as a full time or part-time volunteer as authorized under the Domestic 
Volunteer Service Act of 1973, Pub. L. 93-113, as amended.
    (l) Work station means any public or private agency, institution, 
organization or other entity to which volunteers are assigned by a 
recipient.
    (m) Program or activity means all of the operations of any entity 
described in paragraphs (m)(1) through (4) of this section, any part of 
which is extended Federal financial assistance:
    (1)(i) A department, agency, special purpose district, or other 
instrumentality of a State or of a local government; or

[[Page 64]]

    (ii) The entity of such State or local government that distributes 
such assistance and each such department or agency (and each other State 
or local government entity) to which the assistance is extended, in the 
case of assistance to a State or local government;
    (2)(i) A college, university, or other postsecondary institution, or 
a public system of higher education; or
    (ii) A local educational agency (as defined in 20 U.S.C. 7801), 
system of vocational education, or other school system;
    (3)(i) An entire corporation, partnership, or other private 
organization, or an entire sole proprietorship--
    (A) If assistance is extended to such corporation, partnership, 
private organization, or sole proprietorship as a whole; or
    (B) Which is principally engaged in the business of providing 
education, health care, housing, social services, or parks and 
recreation; or
    (ii) The entire plant or other comparable, geographically separate 
facility to which Federal financial assistance is extended, in the case 
of any other corporation, partnership, private organization, or sole 
proprietorship; or
    (4) Any other entity which is established by two or more of the 
entities described in paragraph (m)(1), (2), or (3) of this section.

(Sec. 504, Rehabilitation Act of 1973, Pub. L. 93-112, 87 Stat. 394 (29 
U.S.C. 794), sec. 111(a), Rehabilitation Act Amendments of 1974, Pub. L. 
93-516, 88 Stat. 1619 (29 U.S.C. 706); Rehabilitation Act Amendments of 
1978, Pub. L. 95-602, 92 Stat. 2955; Sec. 402(14), Pub. L. 93-113, 87 
Stat. 398)

[44 FR 31018, May 30, 1979; 46 FR 6951, Jan. 22, 1981, as amended at 68 
FR 51388, Aug. 26, 2003]



Sec. 1232.4  General prohibitions against discrimination.

    (a) No qualified handicapped person, shall, on the basis of 
handicap, be excluded from participation in, be denied the benefits of, 
or otherwise be subjected to discrimination under any program or 
activity to which this part applies.
    (b)(1) A recipient, in providing any aid, benefit, or service, may 
not, directly or through contractual, licensing, or other arrangements, 
on the basis of handicap:
    (i) Deny a qualified handicapped person the opportunity to 
participate in or benefit from the aid, benefit, or service;
    (ii) Afford a qualified handicapped person an opportunity to 
participate in or benefit from the aid, benefit, or service that is not 
equal to that afforded others;
    (iii) Provide a qualified handicapped person with an aid, benefit, 
or service that is not as effective in affording equal opportunity to 
obtain the same result, to gain the same benefit, or to reach the same 
level of achievement as that provided to others;
    (iv) Provide different or separate aid, benefits, or services to 
handicapped persons or to any class of handicapped persons than is 
provided to others unless such action is necessary to provide qualified 
handicapped persons with aid, benefits, or services that are as 
effective as those provided to others;
    (v) Aid or perpetuate discrimination against a qualified handicapped 
person by providing significant assistance to an agency, organization, 
or person that discriminates on the basis of handicap in providing any 
aid, benefit, or service to beneficiaries of the recipient's program or 
activity;
    (vi) Deny a qualified handicapped person the opportunity to 
participate as a member of planning or advisory boards; or
    (vii) Otherwise limit a qualified handicapped person in the 
enjoyment of any right, privilege, advantage, or opportunity enjoyed by 
others receiving the aid, benefit, or service.
    (2) A recipient may not deny a qualified handicapped person the 
opportunity to participate in aid, benefits, or services that are not 
separate or different, despite the existence of permissibly separate or 
different programs or activities.
    (3) A recipient may not, directly or through contractual or other 
arrangements, utilize criteria or methods of administration:
    (i) That have the effect of subjecting qualified handicapped persons 
to discrimination on the basis of handicap,
    (ii) That have the purpose or effect of defeating or substantially 
impairing

[[Page 65]]

accomplishment of the objectives of the recipient's program or activity 
with respect to handicapped persons, or
    (iii) That perpetuate the discrimination of another recipient if 
both recipients are subject to common administrative control or are 
agencies of the same state.
    (4) A recipient may not, in determining the site or location of a 
facility, make selections:
    (i) That have the effect of excluding handicapped persons from, 
denying them the benefits of, or otherwise subjecting them to 
discrimination under any program or activity that receives federal 
financial assistance or
    (ii) That have the purpose or effect of defeating or substantially 
impairing the accomplishment of the objectives of the program or 
activity with respect to handicapped persons.
    (c) The exclusion of nonhandicapped persons from aid, benefits, or 
services limited by federal statute or executive order to handicapped 
persons or the exclusion of a specific class of handicapped persons from 
aid, benefits, or services limited by federal statute or executive order 
to a different class of handicapped persons is not prohibited by this 
part.
    (d) Recipients shall administer programs or activities in the most 
integrated setting appropriate to the needs of qualified handicapped 
persons.
    (e) Recipients shall take appropriate steps to ensure that 
communications with their applicants, employees, volunteers and 
beneficiaries are available to persons with impaired vision and hearing.
    (f) Recipients shall take appropriate steps to insure that no 
handicapped individual is denied the benefits of, excluded from 
participation in, or otherwise subjected to discrimination in any 
program or activity receiving Federal financial assistance from ACTION 
because of the absence of auxiliary aids for individuals with impaired 
sensory, manual, or speaking skills.

[44 FR 31018, May 30, 1979, as amended at 68 FR 51388, Aug. 26, 2003]



Sec. 1232.5  Assurances required.

    (a) An applicant for Federal financial assistance to which this part 
applies shall submit an assurance, on a form specified by the Director, 
that the program or activity will be operated in compliance with this 
part. An applicant may incorporate these assurances by reference in 
subsequent applications to ACTION. The assurance will obligate the 
recipient for the period during which Federal financial assistance is 
extended.
    (b) In the case of Federal financial assistance extended to provide 
personal property, the assurance will obligate the recipient for the 
period during which it retains ownership or possession of the property.
    (c) A recipient operating a program or activity under which 
volunteers are assigned to a number of work stations shall obtain an 
assurance from each work station that neither volunteers nor the 
beneficiaries they serve will be discriminated against on the basis of 
handicap.

[44 FR 31018, May 30, 1979, as amended at 68 FR 51388, Aug. 26, 2003]



Sec. 1232.6  Notice.

    Recipients shall take appropriate initial and continuing steps to 
notify participants, beneficiaries, applicants, volunteers and 
employees, including those with impaired vision or hearing, that it does 
not discriminate on the basis of handicap in violation of section 504 
and this part.



Sec. 1232.7  Remedial action, voluntary action and self-evaluation.

    (a) Remedial action. (1) If the Director finds that a recipient has 
discriminated against persons on the basis of handicap in violation of 
section 504 or this part, the recipient shall take such remedial action 
as the Director deems necessary to overcome the effects of the 
discrimination.
    (2) Where a recipient is found to have discriminated against persons 
on the basis of handicap in violation of section 504 or this part and 
where another recipient exercises control over the recipient that has 
discriminated, the Director, where appropriate, may require either or 
both recipients to take remedial action.
    (3) The Director may, where necessary to overcome the effects of 
discrimination in violation of section 504

[[Page 66]]

or this part, require a recipient to take remedial action:
    (i) With respect to handicapped persons who are no longer 
participants in the recipient's program or activity but who were 
participants in the program or activity when such discrimination 
occurred or
    (ii) With respect to handicapped persons who would have been 
participants in the program or activity had the discrimination not 
occurred, or
    (iii) With respect to handicapped persons presently in the program 
or activity, but not receiving full benefits or equal and integrated 
treatment within the program or activity.
    (b) Voluntary action. Recipient may take steps, in addition to any 
action that is required by this part, to overcome the effects of 
conditions that resulted in limited participation in the recipient's 
program or activity by qualified handicapped persons.
    (c) Self-evaluation. (1) Each recipient shall, within one year of 
the effective date of this part, conduct a self-evaluation of its 
compliance with Section 504, with the assistance of interested persons, 
including handicapped persons or organizations representing handicapped 
persons. Each recipient shall with the assistance of and consultation 
with interested persons, including handicapped persons, evaluate its 
current policies, practices and effects thereof; modify any that do not 
meet the requirements of this part; and take appropriate remedial steps 
to eliminate the effects of any discrimination that resulted from 
adherence to these policies and practices.
    (2) A recipient that employs fifteen or more persons shall, for at 
least three years following completion of the evaluation required under 
paragraph (c)(1) of this section, maintain on file, make available for 
public inspection, and provide to the Director upon request: (i) A list 
of the interested persons consulted,
    (ii) A description of areas examined and any problems identified, 
and
    (iii) A description of any modifications made and of any remedial 
steps taken.

[44 FR 31018, May 30, 1979, as amended at 68 FR 51388, Aug. 26, 2003]



Sec. 1232.8  Effect of state or local law.

    The obligation to comply with this part is not obviated or 
alleviated by the existence of any state or local law or other 
requirement that, on the basis of handicap, imposes prohibitions or 
limits upon the eligibility of qualified handicapped persons to receive 
services or to practice any occupation or profession.



          Subpart B_Employment and Volunteer Service Practices



Sec. 1232.9  General prohibitions against employment and volunteer
service discrimination.

    (a) No qualified handicapped person shall, on the basis of handicap, 
be subjected to discrimination in employment or volunteer service under 
any program or activity that receives federal financial assistance.
    (b) A recipient shall make all decisions concerning employment or 
volunteer service under any program or activity to which this part 
applies in a manner which ensures that discrimination on the basis of 
handicap does not occur and may not limit, segregate, or classify 
applicants or employees or volunteers in any way that adversely affects 
their opportunities or status because of handicap.
    (c) The prohibition against discrimination in employment and 
volunteer service applies to the following activities:
    (1) Recruitment, advertising, and the processing of applications for 
employment or volunteer service;
    (2) Hiring, upgrading, promotion, award of tenure, demotion, 
transfer, layoff, termination, right of return from layoff, and 
rehiring;
    (3) Rates of pay or any other form of compensation and changes in 
compensation;
    (4) Job assignments, job classifications, organizational structures, 
position descriptions, lines of progression, and seniority lists;
    (5) Leaves of absence, sick leave, or any other leave;
    (6) Fringe benefits available by virtue of employment or volunteer 
service, whether or not administered by the recipient;

[[Page 67]]

    (7) Selection and financial support for training, including 
apprenticeship, professional meetings, conferences, and other related 
activities, and selection for leaves of absence to pursue training;
    (8) Employer sponsored activities, including those that are social 
or recreational; and
    (9) Any other term, condition, or privilege of employment or 
volunteer service.
    (d) A recipient may not participate in a contractural or other 
relationship that has the effect of subjecting qualified handicapped 
applicants, volunteers or employees, to discrimination prohibited by 
this subpart. The relationships referred to in this paragraph include 
relationships with employment and referral agencies, with labor unions, 
with organizations providing or administering fringe benefits to 
employees of the recipient, and with organizations providing training 
and apprenticeships.
    (e) A recipient's obligation to comply with this subpart is not 
affected by any inconsistent term of any collective bargaining agreement 
to which it is a party.
    (f) Recipients operating a program or activity under which 
volunteers are assigned to work in a number of work stations will assure 
that a representative sample of work stations are accessible to 
handicapped persons.

[44 FR 31018, May 30, 1979, as amended at 68 FR 51388, Aug. 26, 2003]



Sec. 1232.10  Reasonable accommodation.

    (a) A recipient shall make reasonable accommodation to the known 
physical or mental limitations of an otherwise qualified handicapped 
applicant, employee or volunteer unless the recipient can demonstrate 
that the accommodation would impose an undue hardship on the operation 
of its program or activity.
    (b) Reasonable accommodation may include: (1) Making facilities used 
by employees or volunteers readily accessible to and usable by 
handicapped persons, and
    (2) Job restructuring, part-time or modified work schedules, 
acquisition or modification of equipment or devices, the provision of 
readers or interpreters, and other similar actions.
    (c) In determining pursuant to paragraph (a) of this section whether 
an accommodation would impose an undue hardship on the operation of a 
recipient's program or activity, factors to be considered include:
    (1) The overall size of the recipient's program or activity with 
respect to number of employees or volunteers, number and type of 
facilities, and size of budget;
    (2) The type of the recipient's operation, including the composition 
and structure of the recipient's workforce or volunteer force, and
    (3) The nature and cost of the accommodation needed.

[44 FR 31018, May 30, 1979, as amended at 68 FR 51388, Aug. 26, 2003]



Sec. 1232.11  Employment and volunteer selection criteria.

    A recipient may not use employment tests or criteria that 
discriminate against handicapped persons and shall ensure that 
employment tests are adapted for use by persons who have handicaps that 
impair sensory, manual, or speaking skills.



Sec. 1232.12  Preemployment or pre-selection inquiries.

    (a) Except as provided in paragraphs (b) and (c) of this section, a 
recipient may not conduct a preemployment medical examination or not 
make pre-employment inquiry of an applicant as to whether the applicant 
is a handicapped person or as to the nature of severity of a handicap. A 
recipient may, however, make preemployment inquiry into an applicant's 
ability to perform job-related functions. For the purpose of this 
paragraph, ``pre-employment'' as applied to applicants for volunteer 
positions means prior to selection as a volunteer.
    (b) When a recipient is taking remedial action to correct the 
effects of past discrimination pursuant to Sec. 1232.8(a), when a 
recipient is taking voluntary action to overcome the effects of 
conditions that resulted in limited participation in its federally 
assisted program or activity pursuant to Sec. 1232.8(b) or when a 
recipient is taking affirmative action pursuant to section

[[Page 68]]

503 of the Act, the recipient may invite applicants for employment or 
volunteer service to indicate whether and to what extent they are 
handicapped: Provided, That:
    (1) The recipient states clearly on any written questionnaire used 
for this purpose or makes clear orally if no written questionnaire is 
used that the information requested is intended for use solely in 
connection with its remedial action obligations or its voluntary or 
affirmative action efforts; and
    (2) The recipient states clearly that the information is being 
requested on a voluntary basis, that it will be kept confidential as 
provided in paragraph (d) of this section, that refusal to provide it 
will not subject the applicant or employee to any adverse treatment, and 
that it will be used only in accordance with this part.
    (c) Nothing in this section shall prohibit a recipient from 
conditioning an offer of employment or volunteer service on the results 
of a medical examination conducted prior to the volunteer or employee's 
entrance on duty. Provided, That:
    (1) All entering volunteers or employees are subjected to such an 
examination regardless of handicap, and
    (2) The results of such an examination are used only in accordance 
with the requirements of this part.
    (d) Information obtained in accordance with this section as to the 
medical condition or history of the applicant shall be collected and 
maintained on separate forms that shall be accorded confidentiality as 
medical records, except that:
    (1) Supervisors and managers may be informed regarding restrictions 
on the work or duties of handicapped persons and regarding necessary 
accommodations;
    (2) First aid and safety personnel may be informed, where 
appropriate, if the condition might require emergency treatment; and
    (3) Government officers investigating compliance with the Act shall 
be provided relevant information upon request.



                         Subpart C_Accessibility



Sec. 1232.13  General requirement concerning accessibility.

    No qualified handicapped person shall, because a recipient's 
facilities are inaccessible to or unusable by handicapped persons, be 
denied the benefits of, be excluded from participation in, or otherwise 
be subjected to discrimination under any program or activity that 
receives or benefits from federal financial assistance.

[44 FR 31018, May 30, 1979]



Sec. 1232.14  Existing facilities.

    (a) A recipient shall operate each program or activity to which this 
part applies so that when each part is viewed in its entirety it is 
readily accessible and usable by handicapped persons. This paragraph 
does not require a recipient to make each of its existing facilities or 
every part of a facility accessible to and usable by handicapped 
persons.
    (b) A recipient is not required to make structural changes in 
existing facilities where other methods are effective in achieving 
compliance with this section. Where structural changes are necessary to 
comply with paragraph (a) of this section, such changes shall be made as 
soon as practicable, but in no event later than three years after the 
effective date of the regulation.
    (c) In the event that structural changes to facilities are necessary 
to meet the requirement of paragraph (a) of this section, a recipient 
shall develop, within six months of the effective date of this part, a 
transition plan which sets forth in detail the steps necessary to 
complete the changes, and a schedule for taking those steps. The plan 
shall be developed with the assistance of interested persons, including 
handicapped persons or organizations representing handicapped persons. A 
copy of the plan shall be made available for public inspection.

[44 FR 31018, May 30, 1979, as amended at 68 FR 51388, Aug. 26, 2003]



Sec. 1232.15  New construction.

    (a) Design, construction, and alteration. New facilities shall be 
designed and constructed to be readily accessible to

[[Page 69]]

and usable by handicapped persons. construction shall be considered new 
if ground breaking takes place after the effective date of the 
regulation. Alterations to existing facilities shall, to the maximum 
extent feasible, be designed and constructed to be readily accessible to 
and usable by handicapped persons.
    (b) Conformance with Uniform Federal Accessibility Standards. (1) 
Effective as of January 18, 1991, design, construction, or alteration of 
buildings in conformance with sections 3-8 of the Uniform Federal 
Accessibility Standards (USAF) (appendix A to 41 CFR subpart 101-19.6) 
shall be deemed to comply with the requirements of this section with 
respect to those buildings. Departures from particular technical and 
scoping requirements of UFAS by the use of other methods are permitted 
where substantially equivalent or greater access to and usability of the 
building is provided.
    (2) For purposes of this section, section 4.1.6(1)(g) of UFAS shall 
be interpreted to exempt from the requirements of UFAS only mechanical 
rooms and other spaces that, because of their intended use, will not 
require accessibility to the public or beneficiaries or result in the 
employment or residence therein of persons with physical handicaps.
    (3) This section does not require recipients to make building 
alterations that have little likelihood of being accomplished without 
removing or altering a load-bearing structural member.

[44 FR 31018, May 30, 1979, as amended at 55 FR 52138, 52142, Dec. 19, 
1990]



                          Subpart D_Procedures



Sec. 1232.16  Procedures.

    The procedural provisions applicable to title VI of the Civil Rights 
Act of 1964 apply to this part. These procedures are found in Sec. Sec. 
1203.6 through 1203.11 of this title.



PART 1233_INTERGOVERNMENTAL REVIEW OF ACTION PROGRAMS--Table of Contents



Sec.
1233.1 What is the purpose of these regulations?
1233.2 What definitions apply to these regulations?
1233.3 What programs of the Agency are subject to these regulations?
1233.4 [Reserved]
1233.5 What is the Director's obligation with respect to federal 
          interagency coordination?
1233.6 What procedures apply to the selection of programs under these 
          regulations?
1233.7 How does the Director communicate with state and local officials 
          concerning the Agency's programs?
1233.8 How does the Director provide states an opportunity to comment on 
          proposed federal financial assistance?
1233.9 How does the Director receive and respond to comments?
1233.10 How does the Director make efforts to accommodate 
          intergovernmental concerns?
1233.11-1233.12 [Reserved]
1233.13 May the Director waive any provision of these regulations?

    Authority: E.O. 12372, July 14, 1982 (47 FR 30959), as amended April 
8, 1983 (48 FR 15887); sec. 401 of the Intergovernmental Cooperation Act 
of 1968, as amended (31 U.S.C. 6505).

    Source: 48 FR 29284, June 24, 1983, unless otherwise noted.



Sec. 1233.1  What is the purpose of these regulations?

    (a) The regulations in this part implement Executive Order 12372, 
``Intergovernmental Review of Federal Programs,'' issued July 14, 1982, 
and amended on April 8, 1983. These regulations also implement 
applicable provisions of section 401 of the Intergovernmental 
Cooperation Act of 1968.
    (b) These regulations are intended to foster an intergovernmental 
partnership and a strengthened Federalism by relying on state processes 
and on state, areawide, regional and local coordination for review of 
proposed federal financial assistance.
    (c) These regulations are intended to aid the internal management of 
the Agency, and are not intended to create any right or benefit 
enforceable at law by a party against the Agency or its officers.



Sec. 1233.2  What definitions apply to these regulations?

    Agency means ACTION, the National Volunteer Agency.
    Order means Executive Order 12372, issued July 14, 1982, and amended 
April

[[Page 70]]

8, 1983 and titled ``Intergovernmental Review of Federal Programs.''
    Director means the Director of ACTION, or an official or employee of 
the Agency acting for the Director under a delegation of authority.
    State means any of the 50 states, the District of Columbia, the 
Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana 
Islands, Guam, American Samoa, the U.S. Virgin Islands, or the Trust 
Territory of the Pacific Islands.



Sec. 1233.3  What programs of the Agency are subject to these
regulations?

    The Director publishes in the Federal Register a list of the 
Agency's programs that are subject to these regulations.



Sec. 1233.4  [Reserved]



Sec. 1233.5  What is the Director's obligation with respect to federal
interagency coordination?

    The Director, to the extent practicable, consults with and seeks 
advice from all other substantially affected federal departments and 
agencies in an effort to assure full coordination between such agencies 
and ACTION regarding programs covered under these regulations.



Sec. 1233.6  What procedures apply to the selection of programs 
under these regulations?

    (a) A state may select any ACTION program published in the Federal 
Register in accordance with Sec. 1233.3 of this part for 
intergovernmental review under these regulations. Each state, before 
selecting programs and activities, shall consult with local elected 
officials.
    (b) Each state that adopts a process shall notify the Director of 
the Agency's programs selected for that process.
    (c) A state may notify the Director of changes in its selections at 
any time. For each change, the state shall submit to the Director an 
assurance that the state has consulted with local elected officials 
regarding the change. The Agency may establish deadlines by which states 
are required to inform the Director of changes in their program 
selections.
    (d) The Director uses a state's process as soon as feasible, 
depending on individual programs, after the Director is notified of its 
selections.



Sec. 1233.7  How does the Director communicate with state and local
officials concerning the Agency's programs?

    (a) The Director provides opportunities for consultation by elected 
officials of those state and local governments that would provide the 
nonfederal funds for, or that would be directly affected by, proposed 
federal financial assistance from the Agency. For those programs covered 
by a state process under Sec. 1233.6, the Director, to the extent 
permitted by law:
    (1) Uses the official state process to determine views of state and 
local elected officials; and,
    (2) Communicates with state and local elected officials, through the 
official state process, as early in a program planning cycle as is 
reasonably feasible to explain specific plans and actions.
    (b) The Director provides notice to directly affected state, 
areawide, regional, and local entities in a state of proposed federal 
financial assistance if:
    (1) The state has not adopted a process under the Order; or
    (2) The assistance involves a program not selected for the state 
process.

This notice may be made by publication in the Federal Register, or other 
appropriate means, which the Agency in its discretion deems appropriate.



Sec. 1233.8  How does the Director provide states an opportunity to
comment on proposed federal financial assistance?

    (a) Except in unusual circumstances, the Director gives state 
processes or directly affected state, areawide, regional and local 
officials and entities:
    (1) At least 30 days from the date established by the Director to 
comment on proposed federal financial assistance in the form of 
noncompeting continuation awards; and
    (2) At least 60 days from the date established by the Director to 
comment on proposed federal financial assistance other than noncompeting 
continuation awards.

[[Page 71]]

    (b) This section also applies to comments in cases in which the 
review, coordination, and communication with the Agency have been 
delegated.



Sec. 1233.9  How does the Director receive and respond to comments?

    (a) The Director follows the procedures in Sec. 1233.10 if:
    (1) A state office or official is designated to act as a single 
point of contact between a state process and all federal agencies, and
    (2) That office or official transmits a state process recommendation 
for a program selected under Sec. 1233.6.
    (b)(1) The single point of contact is not obligated to transmit 
comments from state, areawide, regional or local officials and entities 
where there is no state process recommendation.
    (2) If a state process recommendation is transmitted by a single 
point of contact, all comments from state, areawide, regional, and local 
officials and entities that differ from it must also be transmitted.
    (c) If a state has not established a process, or is unable to submit 
a state process recommendation, state, areawide, regional and local 
officials and entities may submit comments either to the applicant or to 
the Agency, or both.
    (d) If a program is not selected for a state process, state, 
areawide, regional and local officials and entities may submit comments 
either to the applicant or to the Agency, or both. In addition, if a 
state process recommendation for a nonselected program is transmitted to 
the Agency by the single point of contact, the Director follows the 
prodecures of Sec. 1233.10 of this part.
    (e) The Director considers comments which do not constitute a state 
process recommendation submitted under these regulations and for which 
the Director is not required to apply the procedures of Sec. 1233.10 of 
this part, when such comments are provided by a single point of contact, 
by the applicant, or directly to the Agency by a commenting party.



Sec. 1233.10  How does the Director make efforts to accommodate
intergovernmental concerns?

    (a) If a state process provides a state process recommendation to 
the Agency through its single point of contact, the Director either:
    (1) Accepts the recommendation;
    (2) Reaches a mutually agreeable solution with the state process; or
    (3) Provides the single point of contact with a written explanation 
of the Agency's decision, in such form as the Director in his or her 
discretion deems appropriate. The Director may also supplement the 
written explanation by providing the explanation to the single point of 
contact by telephone, other telecommunication, or other means.
    (b) In any explanation under paragraph (a)(3) of this section, the 
Director informs the single point of contact that:
    (1) The Agency will not implement its decision for at least ten days 
after the single point of contact receives the explanation; or
    (2) The Director has reviewed the decision and determined that, 
because of unusual circumstances, the waiting period of at least ten 
days is not feasible.
    (c) For purpose of computing the waiting period under paragraph 
(b)(1) of this section, a single point of contact is presumed to have 
received written notification 5 days after the date of mailing of such 
notification.



Sec. Sec. 1233.11-1233.12  [Reserved]



Sec. 1233.13  May the Director waive any provision of these regulations?

    In an emergency, the Director may waive any provision of these 
regulations.



PART 1235_LOCALLY GENERATED CONTRIBUTIONS IN OLDER AMERICAN VOLUNTEER 
PROGRAMS--Table of Contents



Sec.
1235.1 Definitions.
1235.2 Implementation guidance.
1235.3 Statement of policy.

    Authority: 42 U.S.C. 5024; 42 U.S.C. 5060.

    Source: 56 FR 4732, Feb. 6, 1991, unless otherwise noted.

[[Page 72]]



Sec. 1235.1  Definitions.

    As used in this part and in section 224 of the Domestic Volunteer 
Service Act of 1973, as amended, the following definitions shall apply:
    (a) Director means the Director of ACTION.
    (b) Locally Generated Contributions means all contributions 
generated by the grantee in support of the grant, including non-ACTION 
Federal, State, local government and privately raised contributions.
    (c) Amount Required by the Director means the proportion of the non-
Federal contribution (including in-kind contributions) for a grant or 
contract made under the Domestic Volunteer Service Act of 1973, as 
amended, required by the Director in order to receive ACTION funds. This 
proportion is generally 10% for the Foster Grandparent Program/Senior 
Companion Program (FGP/SCP) and generally 10%, 20% and 30% for the 
Retired Senior Volunteer Program (RSVP) in the first, second, and 
subsequent years respectively. The ``amount required by the Director'' 
is also called the ``local match.''
    (d) In Excess of the Amount Required by the Director means of the 
total locally generated contributions, the amount over and above the 
percentage match (generally 10% for FGP/SCP and 10%, 20% and 30% for 
RSVP in the first, second, and subsequent years respectively) required 
by the Director of ACTION to be raised from non-ACTION sources to 
support the grant.
    (e) Inconsistent with the Provisions of This Act means expenditures 
not in support of ACTION programs, as defined by the Domestic Volunteer 
Service Act of 1973, as amended. For example:
    (1) Inconsistency with the age threshold for volunteers for all 
Older American Volunteer Programs (OAVP);
    (2) Inconsistency with the low income test for the FGP and SCP 
programs;
    (3) Variations from the approved stipend levels for the FGP and SCP 
programs;
    (4) Inconsistency with the prohibition against political activity 
under all the OAVP programs; and/or
    (5) Unreasonable cost for a low-cost volunteer program.



Sec. 1235.2  Implementation guidance.

    ACTION's implementation of section 224 of the DVSA is based on 
fundamental principles regarding the Congressional intent of the Section 
as well as the Executive Branch's policy on Federal financial assistance 
to grantees. These principles include:
    (a) That ACTION may not restrict grantees' use of excess 
contributions as long as those expenditures are ``not inconsistent'' 
with the Domestic Volunteer Service Act of 1973, as amended;
    (b) That grantees are to fully account for and document expenditures 
of non-Federal contributions, regardless of whether they are used to 
meet ACTION's local match requirement or are in excess of the 
requirement; and

[56 FR 4732, Feb. 6, 1991, as amended at 79 FR 76077, Dec. 19, 2014]



Sec. 1235.3  Statement of policy.

    (a) Expenditures of locally generated non-Federal contributions 
required by the Director as matching funds must meet the requirements 
specified in ACTION's Grant Management and Program Operations Handbook, 
ACTION Order 2650.2, as amended, and the Domestic Volunteer Service Act 
of 1973, as amended. Copies of ACTION's Grants Management and Program 
Operations Handbook, ACTION Order 2650.2, as amended, are available at 
ACTION, 1100 Vermont Avenue, NW., Room 9200, Washington, DC 20525.
    (b) All expenditures by the grantee of Federal and non-Federal funds 
(including expenditures from excess locally generated contributions) in 
support of the grant are subject to ACTION authorized audits.
    (c) ACTION will not restrict the manner in which locally generated 
contributions in excess of the required match are expended if these 
expenditures are not inconsistent with the Domestic Volunteer Service 
Act of 1973, as amended.

                       PARTS 1236	1299 [RESERVED]

[[Page 73]]



 CHAPTER XIII--ADMINISTRATION FOR CHILDREN AND FAMILIES, DEPARTMENT OF 
                        HEALTH AND HUMAN SERVICES




  --------------------------------------------------------------------

 SUBCHAPTER A--OFFICE OF HUMAN DEVELOPMENT SERVICES, GENERAL PROVISIONS 
                               [RESERVED]
 SUBCHAPTER B--THE ADMINISTRATION FOR CHILDREN AND FAMILIES, HEAD START 
                                 PROGRAM
Part                                                                Page
1300            [Reserved]

1301            Program governance..........................          75
1302            Program operations..........................          77
1303            Financial and administrative requirements...         116
1304            Federal administrative procedures...........         131
1305            Definitions.................................         143
          SUBCHAPTER C--THE ADMINISTRATION FOR COMMUNITY LIVING
1321            Grants to State and community programs on 
                    aging...................................         148
1322            Grants to Indian tribes for support and 
                    nutrition services......................         163
1323            Grants for supportive and nutritional 
                    services to older Hawaiian natives......         167
1324            Allotments for vulnerable elder rights 
                    protection activities...................         171
1325            Requirements applicable to the developmental 
                    disabilities program....................         188
1326            Formula grant programs......................         194
1327            Developmental disabilities projects of 
                    national significance...................         217
1328            The national network of university centers 
                    for excellence in developmental 
                    disabilities, education, research, and 
                    service.................................         218
1329            State independent living services and 
                    centers for independent living..........         222
1330            National Institute for Disability, 
                    Independent Living, and Rehabilitation 
                    Research................................         232

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1331            State health insurance assistance program...         242
 SUBCHAPTER D--THE ADMINISTRATION FOR NATIVE AMERICANS, NATIVE AMERICAN 
                                PROGRAMS
1336            Native American programs....................         245
                         SUBCHAPTER E [RESERVED]
   SUBCHAPTER F--THE ADMINISTRATION FOR CHILDREN, YOUTH AND FAMILIES, 
                    FAMILY AND YOUTH SERVICES BUREAU
1351            Runaway and Homeless Youth Program..........         260
SUBCHAPTER G--THE ADMINISTRATION ON CHILDREN, YOUTH AND FAMILIES, FOSTER 
  CARE MAINTENANCE PAYMENTS, ADOPTION ASSISTANCE, AND CHILD AND FAMILY 
                                SERVICES
1355            General.....................................         273
1356            Requirements applicable to Title IV-E.......         345
1357            Requirements applicable to Title IV-B.......         379
     SUBCHAPTER H--FAMILY VIOLENCE PREVENTION AND SERVICES PROGRAMS
1370            Family violence prevention and services 
                    programs................................         395
   SUBCHAPTER I--THE ADMINISTRATION ON INTELLECTUAL AND DEVELOPMENTAL 
            DISABILITIES, DEVELOPMENTAL DISABILITIES PROGRAM
1385-1399

[Reserved]

                       SUBCHAPTERS J-K [RESERVED]

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 SUBCHAPTER A_OFFICE OF HUMAN DEVELOPMENT SERVICES, GENERAL PROVISIONS 
                               [RESERVED]





 SUBCHAPTER B_THE ADMINISTRATION FOR CHILDREN AND FAMILIES, HEAD START 
                                 PROGRAM



                          PART 1300 [RESERVED]





PART 1301_PROGRAM GOVERNANCE--Table of Contents



Sec.
1301.1 Purpose.
1301.2 Governing body.
1301.3 Policy council and policy committee.
1301.4 Parent committees.
1301.5 Training.
1301.6 Impasse procedures.

    Authority: 42 U.S.C. 9801 et seq.

    Source: 81 FR 61412, Sept. 6, 2016, unless otherwise noted.



Sec. 1301.1  In general.

    An agency, as defined in part 1305 of this chapter, must establish 
and maintain a formal structure for program governance that includes a 
governing body, a policy council at the agency level and policy 
committee at the delegate level, and a parent committee. Governing 
bodies have a legal and fiscal responsibility to administer and oversee 
the agency's Head Start and Early Head Start programs. Policy councils 
are responsible for the direction of the agency's Head Start and Early 
Head Start programs.



Sec. 1301.2  Governing body.

    (a) Composition. The composition of a governing body must be in 
accordance with the requirements specified at section 642(c)(1)(B) of 
the Act, except where specific exceptions are authorized in the case of 
public entities at section 642(c)(1)(D) of the Act. Agencies must ensure 
members of the governing body do not have a conflict of interest, 
pursuant to section 642(c)(1)(C) of the Act.
    (b) Duties and responsibilities. (1) The governing body is 
responsible for activities specified at section 642(c)(1)(E) of the Act.
    (2) The governing body must use ongoing monitoring results, data on 
school readiness goals, other information described in Sec. 1302.102, 
and information described at section 642(d)(2) of the Act to conduct its 
responsibilities.
    (c) Advisory committees. (1) A governing body may establish advisory 
committees as it deems necessary for effective governance and 
improvement of the program.
    (2) If a governing body establishes an advisory committee to oversee 
key responsibilities related to program governance, it must:
    (i) Establish the structure, communication, and oversight in such a 
way that the governing body continues to maintain its legal and fiscal 
responsibility for the Head Start agency; and,
    (ii) Notify the responsible HHS official of its intent to establish 
such an advisory committee.



Sec. 1301.3  Policy council and policy committee.

    (a) Establishing policy councils and policy committees. Each agency 
must establish and maintain a policy council responsible for the 
direction of the Head Start program at the agency level, and a policy 
committee at the delegate level. If an agency delegates operational 
responsibility for the entire Head Start or Early Head Start program to 
one delegate agency, the policy council and policy committee may be the 
same body.
    (b) Composition. (1) A program must establish a policy council in 
accordance with section 642(c)(2)(B) of the Act, or a policy committee 
at the delegate level in accordance with section 642(c)(3) of the Act, 
as early in the program year as possible. Parents of children currently 
enrolled in each program option must be proportionately represented on 
the policy council and on the policy committee at the delegate level.
    (2) The program must ensure members of the policy council, and of 
the

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policy committee at the delegate level, do not have a conflict of 
interest pursuant to sections 642(c)(2)(C) and 642(c)(3)(B) of the Act. 
Staff may not serve on the policy council or policy committee at the 
delegate level except parents who occasionally substitute as staff. In 
the case of tribal grantees, this exclusion applies only to tribal staff 
who work in areas directly related to or which directly impact 
administrative, fiscal, or programmatic issues.
    (c) Duties and responsibilities. (1) A policy council is responsible 
for activities specified at section 642(c)(2)(D) of the Act. A policy 
committee must approve and submit to the delegate agency its decisions 
in each of the following areas referenced at section 642(c)(2)(D)(i) 
through (vii) of the Act.
    (2) A policy council, and a policy committee at the delegate level, 
must use ongoing monitoring results, data on school readiness goals, 
other information described in Sec. 1302.102, and information described 
in section 642(d)(2) of the Act to conduct its responsibilities.
    (d) Term. (1) A member will serve for one year.
    (2) If the member intends to serve for another year, s/he must stand 
for re-election.
    (3) The policy council, and policy committee at the delegate level, 
must include in its bylaws how many one-year terms, not to exceed five 
terms, a person may serve.
    (4) A program must seat a successor policy council, or policy 
committee at the delegate level, before an existing policy council, or 
policy committee at the delegate level, may be dissolved.
    (e) Reimbursement. A program must enable low-income members to 
participate fully in their policy council or policy committee 
responsibilities by providing, if necessary, reimbursements for 
reasonable expenses incurred by the low-income members.



Sec. 1301.4  Parent committees.

    (a) Establishing parent committees. A program must establish a 
parent committee comprised exclusively of parents of currently enrolled 
children as early in the program year as possible. This committee must 
be established at the center level for center-based programs and at the 
local program level for other program options. When a program operates 
more than one option, parents may choose to have a separate committee 
for each option or combine membership. A program must ensure that 
parents of currently enrolled children understand the process for 
elections to the policy council or policy committee and other leadership 
opportunities.
    (b) Requirements of parent committees. Within the parent committee 
structure, a program may determine the best methods to engage families 
using strategies that are most effective in their community, as long as 
the program ensures the parent committee carries out the following 
minimum responsibilities:
    (1) Advise staff in developing and implementing local program 
policies, activities, and services to ensure they meet the needs of 
children and families;
    (2) Have a process for communication with the policy council and 
policy committee; and
    (3) Within the guidelines established by the governing body, policy 
council or policy committee, participate in the recruitment and 
screening of Early Head Start and Head Start employees.



Sec. 1301.5  Training.

    An agency must provide appropriate training and technical assistance 
or orientation to the governing body, any advisory committee members, 
and the policy council, including training on program performance 
standards and training indicated in Sec. 1302.12(m) to ensure the 
members understand the information they receive and can effectively 
oversee and participate in the programs in the Head Start agency.



Sec. 1301.6  Impasse procedures.

    (a) To facilitate meaningful consultation and collaboration about 
decisions of the governing body and the policy council, each agency's 
governing body and policy council jointly must establish written 
procedures for resolving internal disputes between the governing board 
and policy council in a timely manner that include impasse procedures. 
These procedures must:

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    (1) Demonstrate that the governing body considers proposed decisions 
from the policy council and that the policy council considers proposed 
decisions from the governing body;
    (2) If there is a disagreement, require the governing body and the 
policy council to notify the other in writing why it does not accept a 
decision; and,
    (3) Describe a decision-making process and a timeline to resolve 
disputes and reach decisions that are not arbitrary, capricious, or 
illegal.
    (b) If the agency's decision-making process does not result in a 
resolution and an impasse continues, the governing body and policy 
council must select a mutually agreeable third party mediator and 
participate in a formal process of mediation that leads to a resolution 
of the dispute.
    (c) For all programs except American Indian and Alaska Native 
programs, if no resolution is reached with a mediator, the governing 
body and policy council must select a mutually agreeable arbitrator 
whose decision is final.



PART 1302_PROGRAM OPERATIONS--Table of Contents



Sec.
1302.1 Overview.

     Subpart A_Eligibility, Recruitment, Selection, Enrollment, and 
                               Attendance

1302.10 Purpose.
1302.11 Determining community strengths, needs, and resources.
1302.12 Determining, verifying, and documenting eligibility.
1302.13 Recruitment of children.
1302.14 Selection process.
1302.15 Enrollment.
1302.16 Attendance.
1302.17 Suspension and expulsion.
1302.18 Fees.

                       Subpart B_Program Structure

1302.20 Determining program structure.
1302.21 Center-based option.
1302.22 Home-based option.
1302.23 Family child care option.
1302.24 Locally-designed program option variations.

       Subpart C_Education and Child Development Program Services

1302.30 Purpose.
1302.31 Teaching and the learning environment.
1302.32 Curricula.
1302.33 Child screenings and assessments.
1302.34 Parent and family engagement in education and child development 
          services.
1302.35 Education in home-based programs.
1302.36 Tribal language preservation and revitalization.

                    Subpart D_Health Program Services

1302.40 Purpose.
1302.41 Collaboration and communication with parents.
1302.42 Child health status and care.
1302.43 Oral health practices.
1302.44 Child nutrition.
1302.45 Child mental health and social and emotional well-being.
1302.46 Family support services for health, nutrition, and mental 
          health.
1302.47 Safety practices.

       Subpart E_Family and Community Engagement Program Services

1302.50 Family engagement.
1302.51 Parent activities to promote child learning and development.
1302.52 Family partnership services.
1302.53 Community partnerships and coordination with other early 
          childhood and education programs.

      Subpart F_Additional Services for Children With Disabilities

1302.60 Full participation in program services and activities.
1302.61 Additional services for children.
1302.62 Additional services for parents.
1302.63 Coordination and collaboration with the local agency responsible 
          for implementing IDEA.

                      Subpart G_Transition Services

1302.70 Transitions from Early Head Start.
1302.71 Transitions from Head Start to kindergarten.
1302.72 Transitions between programs.

              Subpart H_Services to Enrolled Pregnant Women

1302.80 Enrolled pregnant women.
1302.81 Prenatal and postpartum information, education, and services.
1302.82 Family partnership services for enrolled pregnant women.

                  Subpart I_Human Resources Management

1302.90 Personnel policies.

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1302.91 Staff qualification and competency requirements.
1302.92 Training and professional development.
1302.93 Staff health and wellness.
1302.94 Volunteers.

          Subpart J_Program Management and Quality Improvement

1302.100 Purpose.
1302.101 Management system.
1302.102 Achieving program goals.
1302.103 Implementation of program performance standards.

    Authority: 42 U.S.C. 9801 et seq.

    Source: 81 FR 61412, Sept. 6, 2016, unless otherwise noted.



Sec. 1302.1  Overview.

    This part implements these statutory requirements in Sections 641A, 
645, 645A, and 648A of the Act by describing all of the program 
performance standards that are required to operate Head Start, Early 
Head Start, American Indian and Alaska Native and Migrant or Seasonal 
Head Start programs. The part covers the full range of operations from 
enrolling eligible children and providing program services to those 
children and their families, to managing programs to ensure staff are 
qualified and supported to effectively provide services. This part also 
focuses on using data through ongoing program improvement to ensure 
high-quality service. As required in the Act, these provisions do not 
narrow the scope or quality of services covered in previous regulations. 
Instead, these regulations raise the quality standard to reflect science 
and best practices, and streamline and simplify requirements so programs 
can better understand what is required for quality services.



     Subpart A_Eligibility, Recruitment, Selection, Enrollment, and 
                               Attendance



Sec. 1302.10  Purpose.

    This subpart describes requirements of grantees for determining 
community strengths, needs and resources as well as recruitment areas. 
It contains requirements and procedures for the eligibility 
determination, recruitment, selection, enrollment and attendance of 
children and explains the policy concerning the charging of fees.



Sec. 1302.11  Determining community strengths, needs, and resources.

    (a) Service area. (1) A program must propose a service area in the 
grant application and define the area by county or sub-county area, such 
as a municipality, town or census tract or jurisdiction of a federally 
recognized Indian reservation.
    (i) A tribal program may propose a service area that includes areas 
where members of Indian tribes or those eligible for such membership 
reside, including but not limited to Indian reservation land, areas 
designated as near-reservation by the Bureau of Indian Affairs (BIA) 
provided that the service area is approved by the tribe's governing 
council, Alaska Native Villages, Alaska Native Regional Corporations 
with land-based authorities, Oklahoma Tribal Statistical Areas, and 
Tribal Designated Statistical Areas where federally recognized Indian 
tribes do not have a federally established reservation.
    (ii) If the tribe's service area includes any area specified in 
paragraph (a)(1)(i) of this section, and that area is also served by 
another program, the tribe may serve children from families who are 
members of or eligible to be members of such tribe and who reside in 
such areas as well as children from families who are not members of the 
tribe, but who reside within the tribe's established service area.
    (2) If a program decides to change the service area after ACF has 
approved its grant application, the program must submit to ACF a new 
service area proposal for approval.
    (b) Community wide strategic planning and needs assessment 
(community assessment). (1) To design a program that meets community 
needs, and builds on strengths and resources, a program must conduct a 
community assessment at least once over the five-year grant period. The 
community assessment must use data that describes community strengths, 
needs, and resources and include, at a minimum:
    (i) The number of eligible infants, toddlers, preschool age 
children, and

[[Page 79]]

expectant mothers, including their geographic location, race, ethnicity, 
and languages they speak, including:
    (A) Children experiencing homelessness in collaboration with, to the 
extent possible, McKinney-Vento Local Education Agency Liaisons (42 
U.S.C. 11432 (6)(A));
    (B) Children in foster care; and
    (C) Children with disabilities, including types of disabilities and 
relevant services and resources provided to these children by community 
agencies;
    (ii) The education, health, nutrition and social service needs of 
eligible children and their families, including prevalent social or 
economic factors that impact their well-being;
    (iii) Typical work, school, and training schedules of parents with 
eligible children;
    (iv) Other child development, child care centers, and family child 
care programs that serve eligible children, including home visiting, 
publicly funded state and local preschools, and the approximate number 
of eligible children served;
    (v) Resources that are available in the community to address the 
needs of eligible children and their families; and,
    (vi) Strengths of the community.
    (2) A program must annually review and update the community 
assessment to reflect any significant changes including increased 
availability of publicly-funded pre-kindergarten- (including an 
assessment of how the pre-kindergarten available in the community meets 
the needs of the parents and children served by the program, and whether 
it is offered for a full school day), rates of family and child 
homelessness, and significant shifts in community demographics and 
resources.
    (3) A program must consider whether the characteristics of the 
community allow it to include children from diverse economic backgrounds 
that would be supported by other funding sources, including private pay, 
in addition to the program's eligible funded enrollment. A program must 
not enroll children from diverse economic backgrounds if it would result 
in a program serving less than its eligible funded enrollment.



Sec. 1302.12  Determining, verifying, and documenting eligibility.

    (a) Process overview. (1) Program staff must:
    (i) Conduct an in-person interview with each family, unless 
paragraph (a)(2) of this section applies;
    (ii) Verify information as required in paragraphs (h) and (i) of 
this section; and,
    (iii) Create an eligibility determination record for enrolled 
participants according to paragraph (k) of this section.
    (2) Program staff may interview the family over the telephone if an 
in-person interview is not possible or convenient for the family.
    (3) If a program has an alternate method to reasonably determine 
eligibility based on its community assessment, geographic and 
administrative data, or from other reliable data sources, it may 
petition the responsible HHS official to waive requirements in 
paragraphs (a)(1)(i) and (ii) of this section.
    (b)  Age requirements. (1) For Early Head Start, except when the 
child is transitioning to Head Start, a child must be an infant or a 
toddler younger than three years old.
    (2) For Head Start, a child must:
    (i) Be at least three years old or, turn three years old by the date 
used to determine eligibility for public school in the community in 
which the Head Start program is located; and,
    (ii) Be no older than the age required to attend school.
    (3) For Migrant or Seasonal Head Start, a child must be younger than 
compulsory school age by the date used to determine public school 
eligibility for the community in which the program is located.
    (c) Eligibility requirements. (1) A pregnant woman or a child is 
eligible if:
    (i) The family's income is equal to or below the poverty line; or,
    (ii) The family is eligible for or, in the absence of child care, 
would be potentially eligible for public assistance; including TANF 
child-only payments; or,
    (iii) The child is homeless, as defined in part 1305; or,
    (iv) The child is in foster care.

[[Page 80]]

    (2) If the family does not meet a criterion under paragraph (c)(1) 
of this section, a program may enroll a child who would benefit from 
services, provided that these participants only make up to 10 percent of 
a program's enrollment in accordance with paragraph (d) of this section.
    (d) Additional allowances for programs. (1) A program may enroll an 
additional 35 percent of participants whose families do not meet a 
criterion described in paragraph (c) of this section and whose incomes 
are below 130 percent of the poverty line, if the program:
    (i) Establishes and implements outreach, and enrollment policies and 
procedures to ensure it is meeting the needs of eligible pregnant women, 
children, and children with disabilities, before serving pregnant women 
or children who do not meet the criteria in paragraph (c) of this 
section; and,
    (ii) Establishes criteria that ensure pregnant women and children 
eligible under the criteria listed in paragraph (c) of this section are 
served first.
    (2) If a program chooses to enroll participants who do not meet a 
criterion in paragraph (c) of this section, and whose family incomes are 
between 100 and 130 percent of the poverty line, it must be able to 
report to the Head Start regional program office:
    (i) How it is meeting the needs of low-income families or families 
potentially eligible for public assistance, homeless children, and 
children in foster care, and include local demographic data on these 
populations;
    (ii) Outreach and enrollment policies and procedures that ensure it 
is meeting the needs of eligible children or pregnant women, before 
serving over-income children or pregnant women;
    (iii) Efforts, including outreach, to be fully enrolled with 
eligible pregnant women or children;
    (iv) Policies, procedures, and selection criteria it uses to serve 
eligible children;
    (v) Its current enrollment and its enrollment for the previous year;
    (vi) The number of pregnant women and children served, disaggregated 
by the eligibility criteria in paragraphs (c) and (d)(1) of this 
section; and,
    (vii) The eligibility criteria category of each child on the 
program's waiting list.
    (e) Additional allowances for Indian tribes. (1) Notwithstanding 
paragraph (c)(2) of this section, a tribal program may fill more than 10 
percent of its enrollment with participants who are not eligible under 
the criteria in paragraph (c) of this section, if:
    (i) The tribal program has served all eligible pregnant women or 
children who wish to be enrolled from Indian and non-Indian families 
living within the approved service area of the tribal agency;
    (ii) The tribe has resources within its grant, without using 
additional funds from HHS intended to expand Early Head Start or Head 
Start services, to enroll pregnant women or children whose family 
incomes exceed low-income guidelines or who are not otherwise eligible; 
and,
    (iii) At least 51 percent of the program's participants meet an 
eligibility criterion under paragraph (c)(1) of this section.
    (2) If another program does not serve the approved service area, the 
program must serve all eligible Indian and non-Indian pregnant women or 
children who wish to enroll before serving over-income pregnant women or 
children.
    (3) A program that meets the conditions of this paragraph (e) must 
annually set criteria that are approved by the policy council and the 
tribal council for selecting over-income pregnant women or children who 
would benefit from program services.
    (4) An Indian tribe or tribes that operates both an Early Head Start 
program and a Head Start program may, at its discretion, at any time 
during the grant period involved, reallocate funds between the Early 
Head Start program and the Head Start program in order to address 
fluctuations in client populations, including pregnant women and 
children from birth to compulsory school age. The reallocation of such 
funds between programs by an Indian tribe or tribes during a year may 
not serve as a basis for any reduction of the base grant for either 
program in succeeding years.

[[Page 81]]

    (f) Migrant or Seasonal eligibility requirements. A child is 
eligible for Migrant or Seasonal Head Start, if the family meets an 
eligibility criterion in paragraphs (c) and (d) of this section; and the 
family's income comes primarily from agricultural work.
    (g) Eligibility requirements for communities with 1,000 or fewer 
individuals. (1) A program may establish its own criteria for 
eligibility provided that it meets the criteria outlined in section 
645(a)(2) of the Act.
    (2) No child residing in such community whose family is eligible 
under criteria described in paragraphs (c) through (f) of this section, 
may be denied an opportunity to participate in the program under the 
eligibility criteria established under this paragraph (g).
    (h) Verifying age. Program staff must verify a child's age according 
to program policies and procedures. A program's policies and procedures 
cannot require families to provide documents that confirm a child's age, 
if doing so creates a barrier for the family to enroll the child.
    (i) Verifying eligibility. (1) To verify eligibility based on 
income, program staff must use tax forms, pay stubs, or other proof of 
income to determine the family income for the relevant time period.
    (i) If the family cannot provide tax forms, pay stubs, or other 
proof of income for the relevant time period, program staff may accept 
written statements from employers, including individuals who are self-
employed, for the relevant time period and use information provided to 
calculate total annual income with appropriate multipliers.
    (ii) If the family reports no income for the relevant time period, a 
program may accept the family's signed declaration to that effect, if 
program staff describes efforts made to verify the family's income, and 
explains how the family's total income was calculated or seeks 
information from third parties about the family's eligibility, if the 
family gives written consent. If a family gives consent to contact third 
parties, program staff must adhere to program safety and privacy 
policies and procedures and ensure the eligibility determination record 
adheres to paragraph (k)(2) of this section.
    (iii) If the family can demonstrate a significant change in income 
for the relevant time period, program staff may consider current income 
circumstances.
    (2) To verify whether a family is eligible for, or in the absence of 
child care, would be potentially eligible for public assistance, the 
program must have documentation from either the state, local, or tribal 
public assistance agency that shows the family either receives public 
assistance or that shows the family is potentially eligible to receive 
public assistance.
    (3) To verify whether a family is homeless, a program may accept a 
written statement from a homeless services provider, school personnel, 
or other service agency attesting that the child is homeless or any 
other documentation that indicates homelessness, including documentation 
from a public or private agency, a declaration, information gathered on 
enrollment or application forms, or notes from an interview with staff 
to establish the child is homeless; or any other document that 
establishes homelessness.
    (i) If a family can provide one of the documents described in this 
paragraph (i)(3), program staff must describe efforts made to verify the 
accuracy of the information provided and state whether the family is 
eligible because they are homeless.
    (ii) If a family cannot provide one of the documents described in 
this paragraph (i)(3) to prove the child is homeless, a program may 
accept the family's signed declaration to that effect, if, in a written 
statement, program staff describe the child's living situation that 
meets the definition of homeless in part 1305 of this chapter.
    (iii) Program staff may seek information from third parties who have 
firsthand knowledge about a family's living situation, if the family 
gives written consent. If the family gives consent to contact third 
parties, program staff must adhere to program privacy policies and 
procedures and ensure the eligibility determination record adheres to 
paragraph (k) of this section.

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    (4) To verify whether a child is in foster care, program staff must 
accept either a court order or other legal or government-issued 
document, a written statement from a government child welfare official 
that demonstrates the child is in foster care, or proof of a foster care 
payment.
    (j) Eligibility duration. (1) If a child is determined eligible 
under this section and is participating in a Head Start program, he or 
she will remain eligible through the end of the succeeding program year 
except that the Head Start program may choose not to enroll a child when 
there are compelling reasons for the child not to remain in Head Start, 
such as when there is a change in the child's family income and there is 
a child with a greater need for Head Start services.
    (2) Children who are enrolled in a program receiving funds under the 
authority of section 645A of the Act remain eligible while they 
participate in the program.
    (3) If a child moves from an Early Head Start program to a Head 
Start program, program staff must verify the family's eligibility again.
    (4) If a program operates both an Early Head Start and a Head Start 
program, and the parents wish to enroll their child who has been 
enrolled in the program's Early Head Start, the program must ensure, 
whenever possible, the child receives Head Start services until enrolled 
in school, provided the child is eligible.
    (k) Records. (1) A program must keep eligibility determination 
records for each participant and ongoing records of the eligibility 
training for staff required by paragraph (m) of this section. A program 
may keep these records electronically.
    (2) Each eligibility determination record must include:
    (i) Copies of any documents or statements, including declarations, 
that are deemed necessary to verify eligibility under paragraphs (h) and 
(i) of this section;
    (ii) A statement that program staff has made reasonable efforts to 
verify information by:
    (A) Conducting either an in-person, or a telephone interview with 
the family as described under paragraph (a)(1)(i) or (a)(2) of this 
section; and,
    (B) Describing efforts made to verify eligibility, as required under 
paragraphs (h) through (i) of this section; and, collecting documents 
required for third party verification that includes the family's written 
consent to contact each third party, the third parties' names, titles, 
and affiliations, and information from third parties regarding the 
family's eligibility.
    (iii) A statement that identifies whether:
    (A) The family's income is below income guidelines for its size, and 
lists the family's size;
    (B) The family is eligible for or, in the absence of child care, 
potentially eligible for public assistance;
    (C) The child is a homeless child or the child is in foster care;
    (D) The family was determined to be eligible under the criterion in 
paragraph (c)(2) of this section; or,
    (E) The family was determined to be eligible under the criterion in 
paragraph (d)(1) of this section.
    (3) A program must keep eligibility determination records for those 
currently enrolled, as long as they are enrolled, and, for one year 
after they have either stopped receiving services; or are no longer 
enrolled.
    (l) Program policies and procedures on violating eligibility 
determination regulations. A program must establish written policies and 
procedures that describe all actions taken against staff who 
intentionally violate federal and program eligibility determination 
regulations and who enroll pregnant women and children that are not 
eligible to receive Early Head Start or Head Start services.
    (m) Training on eligibility. (1) A program must train all governing 
body, policy council, management, and staff who determine eligibility on 
applicable federal regulations and program policies and procedures. 
Training must, at a minimum:
    (i) Include methods on how to collect complete and accurate 
eligibility information from families and third party sources;
    (ii) Incorporate strategies for treating families with dignity and 
respect and for dealing with possible issues of

[[Page 83]]

domestic violence, stigma, and privacy; and,
    (iii) Explain program policies and procedures that describe actions 
taken against staff, families, or participants who attempt to provide or 
intentionally provide false information.
    (2) A program must train management and staff members who make 
eligibility determinations within 90 days of hiring new staff.
    (3) A program must train all governing body and policy council 
members within 180 days of the beginning of the term of a new governing 
body or policy council.
    (4) A program must develop policies on how often training will be 
provided after the initial training.



Sec. 1302.13  Recruitment of children.

    In order to reach those most in need of services, a program must 
develop and implement a recruitment process designed to actively inform 
all families with eligible children within the recruitment area of the 
availability of program services, and encourage and assist them in 
applying for admission to the program. A program must include specific 
efforts to actively locate and recruit children with disabilities and 
other vulnerable children, including homeless children and children in 
foster care.



Sec. 1302.14  Selection process.

    (a) Selection criteria. (1) A program must annually establish 
selection criteria that weigh the prioritization of selection of 
participants, based on community needs identified in the community needs 
assessment as described in Sec. 1302.11(b), and including family 
income, whether the child is homeless, whether the child is in foster 
care, the child's age, whether the child is eligible for special 
education and related services, or early intervention services, as 
appropriate, as determined under the Individuals with Disabilities 
Education Act (IDEA) (20 U.S.C. 1400 et seq.) and, other relevant family 
or child risk factors.
    (2) If a program serves migrant or seasonal families, it must select 
participants according to criteria in paragraph (a)(1) of this section, 
and give priority to children whose families can demonstrate they have 
relocated frequently within the past two-years to pursue agricultural 
work.
    (3) If a program operates in a service area where Head Start 
eligible children can enroll in high-quality publicly funded pre-
kindergarten for a full school day, the program must prioritize younger 
children as part of the selection criteria in paragraph (a)(1) of this 
section. If this priority would disrupt partnerships with local 
education agencies, then it is not required. An American Indian and 
Alaska Native or Migrant or Seasonal Head Start program must consider 
whether such prioritization is appropriate in their community.
    (4) A program must not deny enrollment based on a disability or 
chronic health condition or its severity.
    (b) Children eligible for services under IDEA. (1) A program must 
ensure at least 10 percent of its total funded enrollment is filled by 
children eligible for services under IDEA, unless the responsible HHS 
official grants a waiver.
    (2) If the requirement in paragraph (b)(1) of this section has been 
met, children eligible for services under IDEA should be prioritized for 
the available slots in accordance with the program's selection criteria 
described in paragraph (a) of this section.
    (c) Waiting lists. A program must develop at the beginning of each 
enrollment year and maintain during the year a waiting list that ranks 
children according to the program's selection criteria.



Sec. 1302.15  Enrollment.

    (a) Funded enrollment. A program must maintain its funded enrollment 
level and fill any vacancy as soon as possible. A program must fill any 
vacancy within 30 days.
    (b) Continuity of enrollment. (1) A program must make efforts to 
maintain enrollment of eligible children for the following year.
    (2) Under exceptional circumstances, a program may maintain a 
child's enrollment in Head Start for a third year, provided that family 
income is verified again. A program may maintain a child's enrollment in 
Early Head Start as described in Sec. 1302.12(j)(2).

[[Page 84]]

    (3) If a program serves homeless children or children in foster 
care, it must make efforts to maintain the child's enrollment regardless 
of whether the family or child moves to a different service area, or 
transition the child to a program in a different service area, as 
required in Sec. 1302.72(a), according to the family's needs.
    (c) Reserved slots. If a program determines from the community 
assessment there are families experiencing homelessness in the area, or 
children in foster care that could benefit from services, the program 
may reserve one or more enrollment slots for pregnant women and children 
experiencing homelessness and children in foster care, when a vacancy 
occurs. No more than three percent of a program's funded enrollment 
slots may be reserved. If the reserved enrollment slot is not filled 
within 30 days, the enrollment slot becomes vacant and then must be 
filled in accordance with paragraph (a) of this section.
    (d) Other enrollment. Children from diverse economic backgrounds who 
are funded with other sources, including private pay, are not considered 
part of a program's eligible funded enrollment.
    (e) State immunization enrollment requirements. A program must 
comply with state immunization enrollment and attendance requirements, 
with the exception of homeless children as described in Sec. 
1302.16(c)(1).
    (f) Voluntary parent participation. Parent participation in any 
program activity is voluntary, including consent for data sharing, and 
is not required as a condition of the child's enrollment.



Sec. 1302.16  Attendance.

    (a) Promoting regular attendance. A program must track attendance 
for each child.
    (1) A program must implement a process to ensure children are safe 
when they do not arrive at school. If a child is unexpectedly absent and 
a parent has not contacted the program within one hour of program start 
time, the program must attempt to contact the parent to ensure the 
child's well-being.
    (2) A program must implement strategies to promote attendance. At a 
minimum, a program must:
    (i) Provide information about the benefits of regular attendance;
    (ii) Support families to promote the child's regular attendance;
    (iii) Conduct a home visit or make other direct contact with a 
child's parents if a child has multiple unexplained absences (such as 
two consecutive unexplained absences); and,
    (iv) Within the first 60 days of program operation, and on an 
ongoing basis thereafter, use individual child attendance data to 
identify children with patterns of absence that put them at risk of 
missing ten percent of program days per year and develop appropriate 
strategies to improve individual attendance among identified children, 
such as direct contact with parents or intensive case management, as 
necessary.
    (3) If a child ceases to attend, the program must make appropriate 
efforts to reengage the family to resume attendance, including as 
described in paragraph (a)(2) of this section. If the child's attendance 
does not resume, then the program must consider that slot vacant. This 
action is not considered expulsion as described in Sec. 1302.17.
    (b) Managing systematic program attendance issues. If a program's 
monthly average daily attendance rate falls below 85 percent, the 
program must analyze the causes of absenteeism to identify any 
systematic issues that contribute to the program's absentee rate. The 
program must use this data to make necessary changes in a timely manner 
as part of ongoing oversight and correction as described in Sec. 
1302.102(b) and inform its continuous improvement efforts as described 
in Sec. 1302.102(c).
    (c) Supporting attendance of homeless children. (1) If a program 
determines a child is eligible under Sec. 1302.12(c)(1)(iii), it must 
allow the child to attend for up to 90 days or as long as allowed under 
state licensing requirements, without immunization and other records, to 
give the family reasonable time to present these documents. A program 
must work with families to get children immunized as soon as possible in 
order to comply with state licensing requirements.

[[Page 85]]

    (2) If a child experiencing homelessness is unable to attend classes 
regularly because the family does not have transportation to and from 
the program facility, the program must utilize community resources, 
where possible, to provide transportation for the child.



Sec. 1302.17  Suspension and expulsion.

    (a) Limitations on suspension. (1) A program must prohibit or 
severely limit the use of suspension due to a child's behavior. Such 
suspensions may only be temporary in nature.
    (2) A temporary suspension must be used only as a last resort in 
extraordinary circumstances where there is a serious safety threat that 
cannot be reduced or eliminated by the provision of reasonable 
modifications.
    (3) Before a program determines whether a temporary suspension is 
necessary, a program must engage with a mental health consultant, 
collaborate with the parents, and utilize appropriate community 
resources--such as behavior coaches, psychologists, other appropriate 
specialists, or other resources--as needed, to determine no other 
reasonable option is appropriate.
    (4) If a temporary suspension is deemed necessary, a program must 
help the child return to full participation in all program activities as 
quickly as possible while ensuring child safety by:
    (i) Continuing to engage with the parents and a mental health 
consultant, and continuing to utilize appropriate community resources;
    (ii) Developing a written plan to document the action and supports 
needed;
    (iii) Providing services that include home visits; and,
    (iv) Determining whether a referral to a local agency responsible 
for implementing IDEA is appropriate.
    (b) Prohibition on expulsion. (1) A program cannot expel or unenroll 
a child from Head Start because of a child's behavior.
    (2) When a child exhibits persistent and serious challenging 
behaviors, a program must explore all possible steps and document all 
steps taken to address such problems, and facilitate the child's safe 
participation in the program. Such steps must include, at a minimum, 
engaging a mental health consultant, considering the appropriateness of 
providing appropriate services and supports under section 504 of the 
Rehabilitation Act to ensure that the child who satisfies the definition 
of disability in 29 U.S.C. 705(9)(b) of the Rehabilitation Act is not 
excluded from the program on the basis of disability, and consulting 
with the parents and the child's teacher, and:
    (i) If the child has an individualized family service plan (IFSP) or 
individualized education program (IEP), the program must consult with 
the agency responsible for the IFSP or IEP to ensure the child receives 
the needed support services; or,
    (ii) If the child does not have an IFSP or IEP, the program must 
collaborate, with parental consent, with the local agency responsible 
for implementing IDEA to determine the child's eligibility for services.
    (3) If, after a program has explored all possible steps and 
documented all steps taken as described in paragraph (b)(2) of this 
section, a program, in consultation with the parents, the child's 
teacher, the agency responsible for implementing IDEA (if applicable), 
and the mental health consultant, determines that the child's continued 
enrollment presents a continued serious safety threat to the child or 
other enrolled children and determines the program is not the most 
appropriate placement for the child, the program must work with such 
entities to directly facilitate the transition of the child to a more 
appropriate placement.



Sec. 1302.18  Fees.

    (a) Policy on fees. A program must not charge eligible families a 
fee to participate in Head Start, including special events such as field 
trips, and cannot in any way condition an eligible child's enrollment or 
participation in the program upon the payment of a fee.
    (b) Allowable fees. (1) A program must only accept a fee from 
families of enrolled children for services that are in addition to 
services funded by Head Start, such as child care before or after funded 
Head Start hours. A program may not condition a Head Start child's 
enrollment on the ability to pay a fee for additional hours.

[[Page 86]]

    (2) In order to support programs serving children from diverse 
economic backgrounds or using multiple funding sources, a program may 
charge fees to private pay families and other non-Head Start enrolled 
families to the extent allowed by any other applicable federal, state or 
local funding sources.



                       Subpart B_Program Structure



Sec. 1302.20  Determining program structure.

    (a) Choose a program option. (1) A program must choose to operate 
one or more of the following program options: Center-based, home-based, 
family child care, or an approved locally-designed variation as 
described in Sec. 1302.24. The program option(s) chosen must meet the 
needs of children and families based on the community assessment 
described in Sec. 1302.11(b). A Head Start program serving preschool-
aged children may not provide only the option described in Sec. 
1302.22(a) and (c)(2).
    (2) To choose a program option and develop a program calendar, a 
program must consider in conjunction with the annual review of the 
community assessment described in Sec. 1302.11(b)(2), whether it would 
better meet child and family needs through conversion of existing slots 
to full school day or full working day slots, extending the program 
year, conversion of existing Head Start slots to Early Head Start slots 
as described in paragraph (c) of this section, and ways to promote 
continuity of care and services. A program must work to identify 
alternate sources to support full working day services. If no additional 
funding is available, program resources may be used.
    (b) Comprehensive services. All program options must deliver the 
full range of services, as described in subparts C, D, E, F, and G of 
this part, except that Sec. Sec. 1302.30 through 1302.32 and Sec. 
1302.34 do not apply to home-based options.
    (c) Conversion. (1) Consistent with section 645(a)(5) of the Head 
Start Act, grantees may request to convert Head Start slots to Early 
Head Start slots through the re-funding application process or as a 
separate grant amendment.
    (2) Any grantee proposing a conversion of Head Start services to 
Early Head Start services must obtain policy council and governing body 
approval and submit the request to their regional office.
    (3) With the exception of American Indian and Alaska Native grantees 
as described in paragraph (c)(4) of this section, the request to the 
regional office must include:
    (i) A grant application budget and a budget narrative that clearly 
identifies the funding amount for the Head Start and Early Head Start 
programs before and after the proposed conversion;
    (ii) The results of the community assessment demonstrating how the 
proposed use of funds would best meet the needs of the community, 
including a description of how the needs of eligible Head Start children 
will be met in the community when the conversion takes places;
    (iii) A revised program schedule that describes the program 
option(s) and the number of funded enrollment slots for Head Start and 
Early Head Start programs before and after the proposed conversion;
    (iv) A description of how the needs of pregnant women, infants, and 
toddlers will be addressed;
    (v) A discussion of the agency's capacity to carry out an effective 
Early Head Start program in accordance with the requirements of section 
645A(b) of the Head Start Act and all applicable regulations;
    (vi) Assurances that the agency will participate in training and 
technical assistance activities required of all Early Head Start 
grantees;
    (vii) A discussion of the qualifications and competencies of the 
child development staff proposed for the Early Head Start program, as 
well as a description of the facilities and program infrastructure that 
will be used to support the new or expanded Early Head Start program;
    (viii) A discussion of any one-time funding necessary to implement 
the proposed conversion and how the agency intends to secure such 
funding; and,
    (ix) The proposed timetable for implementing this conversion, 
including updating school readiness goals as described in subpart J of 
this part.

[[Page 87]]

    (4) Consistent with section 645(d)(3) of the Act, any American 
Indian and Alaska Native grantee that operates both an Early Head Start 
program and a Head Start program may reallocate funds between the 
programs at its discretion and at any time during the grant period 
involved, in order to address fluctuations in client populations. An 
American Indian and Alaska Native program that exercises this discretion 
must notify the regional office.
    (d) Source of funding. A program may consider hours of service that 
meet the Head Start Program Performance Standards, regardless of the 
source of funding, as hours of planned class operations for the purposes 
of meeting the Head Start and Early Head Start service duration 
requirements in this subpart.



Sec. 1302.21  Center-based option.

    (a) Setting. The center-based option delivers the full range of 
services, consistent with Sec. 1302.20(b). Education and child 
development services are delivered primarily in classroom settings.
    (b) Ratios and group size. (1) Staff-child ratios and group size 
maximums must be determined by the age of the majority of children and 
the needs of children present. A program must determine the age of the 
majority of children in a class at the start of the year and may adjust 
this determination during the program year, if necessary. Where state or 
local licensing requirements are more stringent than the teacher-child 
ratios and group size specifications in this section, a program must 
meet the stricter requirements. A program must maintain appropriate 
ratios during all hours of program operation, except:
    (i) For brief absences of a teaching staff member for no more than 
five minutes; and,
    (ii) During nap time, one teaching staff member may be replaced by 
one staff member or trained volunteer who does not meet the teaching 
qualifications required for the age.
    (2) An Early Head Start or Migrant or Seasonal Head Start class that 
serves children under 36 months old must have two teachers with no more 
than eight children, or three teachers with no more than nine children. 
Each teacher must be assigned consistent, primary responsibility for no 
more than four children to promote continuity of care for individual 
children. A program must minimize teacher changes throughout a child's 
enrollment, whenever possible, and consider mixed age group classes to 
support continuity of care.
    (3) A class that serves a majority of children who are three years 
old must have no more than 17 children with a teacher and teaching 
assistant or two teachers. A double session class that serves a majority 
of children who are three years old must have no more than 15 children 
with a teacher and teaching assistant or two teachers.
    (4) A class that serves a majority of children who are four and five 
years old must have no more than 20 children with a teacher and a 
teaching assistant or two teachers. A double session class that serves a 
majority of children who are four and five years old must have no more 
than 17 children with a teacher and a teaching assistant or two 
teachers.

                               Table to Sec. 1302.21(b)--Center-Based Group Size
----------------------------------------------------------------------------------------------------------------
 
----------------------------------------------------------------------------------------------------------------
4 and 5 year olds......................................  No more than 20 children enrolled in any class.
                                                         No more than 17 children enrolled in any double session
                                                          class.
3 year olds............................................  No more than 17 children enrolled in any class.
                                                         No more than 15 children enrolled in any double session
                                                          class.
Under 3 years old......................................  No more than 8 or 9 children enrolled in any class,
                                                          depending on the number of teachers.
----------------------------------------------------------------------------------------------------------------


[[Page 88]]

    (c) Service duration--(1) Early Head Start. (i) By August 1, 2018, a 
program must provide 1,380 annual hours of planned class operations for 
all enrolled children.
    (ii) A program that is designed to meet the needs of young parents 
enrolled in school settings may meet the service duration requirements 
in paragraph (c)(1)(i) of this section if it operates a center-based 
program schedule during the school year aligned with its local education 
agency requirements and provides regular home-based services during the 
summer break.
    (2) Head Start. (i) Until a program is operating all of its Head 
Start center-based funded enrollment at the standard described in 
paragraph (c)(2)(iv) or (v) of this section, a program must provide, at 
a minimum, at least 160 days per year of planned class operations if it 
operates for five days per week, or at least 128 days per year if it 
operates four days per week. Classes must operate for a minimum of 3.5 
hours per day.
    (ii) Until a program is operating all of its Head Start center-based 
funded enrollment at the standard described in paragraph (c)(2)(iv) or 
(v) of this section, if a program operates a double session variation, 
it must provide classes for four days per week for a minimum of 128 days 
per year and 3.5 hours per day. Each double session class staff member 
must be provided adequate break time during the course of the day. In 
addition, teachers, aides, and volunteers must have appropriate time to 
prepare for each session together, to set up the classroom environment, 
and to give individual attention to children entering and leaving the 
center.
    (iii) By August 1, 2019, a program must provide 1,020 annual hours 
of planned class operations over the course of at least eight months per 
year for at least 50 percent of its Head Start center-based funded 
enrollment.
    (iv) By August 1, 2021, a program must provide 1,020 annual hours of 
planned class operations over the course of at least eight months per 
year for all of its Head Start center-based funded enrollment.
    (v) A Head Start program providing fewer than 1,020 annual hours of 
planned class operations or fewer than eight months of service is 
considered to meet the requirements described in paragraphs (c)(2)(iii) 
and (iv) of this section if its program schedule aligns with the annual 
hours required by its local education agency for grade one and such 
alignment is necessary to support partnerships for service delivery.
    (3) Secretarial determination. (i) On or before February 1, 2018, 
the Secretary may lower the required percentage described in paragraph 
(c)(2)(iii) of this section, based on an assessment of the availability 
of sufficient funding to mitigate a substantial reduction in funded 
enrollment; and,
    (ii) On or before February 1, 2020, the Secretary may lower the 
required percentage described in paragraph (c)(2)(iv) of this section, 
based on an assessment of the availability of sufficient funding to 
mitigate a substantial reduction in funded enrollment.
    (4) Extension. If an extension is necessary to ensure children 
enrolled in the program on November 7, 2016 are not displaced from the 
Early Head Start or Head Start program, a program may request a one-year 
extension from the responsible HHS official of the requirements outlined 
in paragraphs (c)(1) and (c)(2)(iii) of this section.
    (5) Exemption for Migrant or Seasonal Head Start programs. A Migrant 
or Seasonal program is not subject to the requirements described in 
Sec. 1302.21(c)(1) or (2), but must make every effort to provide as 
many days and hours of service as possible to each child and family.
    (6) Calendar planning. A program must:
    (i) Plan its year using a reasonable estimate of the number of days 
during a year that classes may be closed due to problems such as 
inclement weather; and,
    (ii) Make every effort to schedule makeup days using existing 
resources if hours of planned class operations fall below the number 
required per year.
    (d) Licensing and square footage requirements. (1) The facilities 
used by a program must meet state, tribal, or local licensing 
requirements, even if exempted by the licensing entity. When state, 
tribal, or local requirements

[[Page 89]]

vary from Head Start requirements, the most stringent provision takes 
precedence.
    (2) A center-based program must have at least 35 square feet of 
usable indoor space per child available for the care and use of children 
(exclusive of bathrooms, halls, kitchen, staff rooms, and storage 
places) and at least 75 square feet of usable outdoor play space per 
child.
    (3) A program that operates two or more groups within an area must 
ensure clearly defined, safe divisions to separate groups. A program 
must ensure such spaces are learning environments that facilitate the 
implementation of the requirements in subpart C of this part. The 
divisions must limit noise transfer from one group to another to prevent 
disruption of an effective learning environment.



Sec. 1302.22  Home-based option.

    (a) Setting. The home-based option delivers the full range of 
services, consistent with Sec. 1302.20(b), through visits with the 
child's parents, primarily in the child's home and through group 
socialization opportunities in a Head Start classroom, community 
facility, home, or on field trips. For Early Head Start programs, the 
home-based option may be used to deliver services to some or all of a 
program's enrolled children. For Head Start programs, the home-based 
option may only be used to deliver services to a portion of a program's 
enrolled children.
    (b) Caseload. A program that implements a home-based option must 
maintain an average caseload of 10 to 12 families per home visitor with 
a maximum of 12 families for any individual home visitor.
    (c) Service duration--(1) Early Head Start. By August 1, 2017, an 
Early Head Start home-based program must:
    (i) Provide one home visit per week per family that lasts at least 
an hour and a half and provide a minimum of 46 visits per year; and,
    (ii) Provide, at a minimum, 22 group socialization activities 
distributed over the course of the program year.
    (2) Head Start. A Head Start home-based program must:
    (i) Provide one home visit per week per family that lasts at least 
an hour and a half and provide a minimum of 32 visits per year; and,
    (ii) Provide, at a minimum, 16 group socialization activities 
distributed over the course of the program year.
    (3) Meeting minimum requirements. A program that implements a home-
based option must:
    (i) Make up planned home visits or scheduled group socialization 
activities that were canceled by the program, and to the extent possible 
attempt to make up planned home visits canceled by the family, when this 
is necessary to meet the minimums described in paragraphs (c)(1) and (2) 
of this section; and,
    (ii) Not replace home visits or scheduled group socialization 
activities for medical or social service appointments for the purposes 
of meeting the minimum requirements described in paragraphs (c)(1) and 
(2) of this section.
    (d) Safety requirements. The areas for learning, playing, sleeping, 
toileting, preparing food, and eating in facilities used for group 
socializations in the home-based option must meet the safety standards 
described in Sec. 1302.47(1)(ii) through (viii).



Sec. 1302.23  Family child care option.

    (a) Setting. The family child care program option delivers the full 
range of services, consistent with Sec. 1302.20(b). Education and child 
development services are primarily delivered by a family child care 
provider in their home or other family-like setting. A program may 
choose to offer the family child care option if:
    (1) The program has a legally binding agreement with one or more 
family child care provider(s) that clearly defines the roles, rights, 
and responsibilities of each party, or the program is the employer of 
the family child care provider, and ensures children and families 
enrolled in this option receive the full range of services described in 
subparts C, D, E, F, and G of this part; and,
    (2) The program ensures family child care homes are available that 
can accommodate children and families with disabilities.
    (b) Ratios and group size. (1) A program that operates the family 
child care option where Head Start children are enrolled must ensure 
group size

[[Page 90]]

does not exceed the limits specified in this section. If the family 
child care provider's own children under the age of six are present, 
they must be included in the group size.
    (2) When there is one family child care provider, the maximum group 
size is six children and no more than two of the six may be under 24 
months of age. When there is a provider and an assistant, the maximum 
group size is twelve children with no more than four of the twelve 
children under 24 months of age.
    (3) One family child care provider may care for up to four children 
younger than 36 months of age with a maximum group size of four 
children, and no more than two of the four children may be under 18 
months of age.
    (4) A program must maintain appropriate ratios during all hours of 
program operation. A program must ensure providers have systems to 
ensure the safety of any child not within view for any period. A program 
must make substitute staff and assistant providers available with the 
necessary training and experience to ensure quality services to children 
are not interrupted.
    (c) Service duration. Whether family child care option services are 
provided directly or via contractual arrangement, a program must ensure 
family child care providers operate sufficient hours to meet the child 
care needs of families and not less than 1,380 hours per year.
    (d) Licensing requirements. A family child-care provider must be 
licensed by the state, tribal, or local entity to provide services in 
their home or family-like setting. When state, tribal, or local 
requirements vary from Head Start requirements, the most stringent 
provision applies.
    (e) Child development specialist. A program that offers the family 
child care option must provide a child development specialist to support 
family child care providers and ensure the provision of quality services 
at each family child care home. Child development specialists must:
    (1) Conduct regular visits to each home, some of which are 
unannounced, not less than once every two weeks;
    (2) Periodically verify compliance with either contract requirements 
or agency policy;
    (3) Facilitate ongoing communication between program staff, family 
child care providers, and enrolled families; and,
    (4) Provide recommendations for technical assistance and support the 
family child care provider in developing relationships with other child 
care professionals.



Sec. 1302.24  Locally-designed program option variations.

    (a) Waiver option. Programs may request to operate a locally-
designed program option, including a combination of program options, to 
better meet the unique needs of their communities or to demonstrate or 
test alternative approaches for providing program services. In order to 
operate a locally-designed program option, programs must seek a waiver 
as described in this section and must deliver the full range of 
services, consistent with Sec. 1302.20(b), and demonstrate how any 
change to their program design is consistent with achieving program 
goals in subpart J of this part.
    (b) Request for approval. A program's request to operate a locally-
designed variation may be approved by the responsible HHS official 
through the end of a program's current grant or, if the request is 
submitted through a grant application for an upcoming project period, 
for the project period of the new award. Such approval may be revoked 
based on progress toward program goals as described in Sec. 1302.102 
and monitoring as described in Sec. 1304.2.
    (c) Waiver requirements. (1) The responsible HHS official may waive 
one or more of the requirements contained in Sec. 1302.21(b), 
(c)(1)(i), and (c)(2)(iii) and (iv); Sec. 1302.22(a) through (c); and 
Sec. 1302.23(b) and (c), but may not waive ratios or group size for 
children under 24 months. Center-based locally-designed options must 
meet the minimums described in section 640(k)(1) of the Act for center-
based programs.
    (2) If the responsible HHS official determines a waiver of group 
size for center-based services would better meet the needs of children 
and families in a community, the group size may not exceed the limits 
below:

[[Page 91]]

    (i) A group that serves children 24 to 36 months of age must have no 
more than ten children; and,
    (ii) A group that serves predominantly three-year-old children must 
have no more than twenty children; and,
    (iii) A group that serves predominantly four-year-old children must 
have no more than twenty-four children.
    (3) If the responsible HHS official approves a waiver to allow a 
program to operate below the minimums described in Sec. 
1302.21(c)(2)(iii) or (iv), a program must meet the requirements 
described in Sec. 1302.21(c)(2)(i), or in the case of a double session 
variation, a program must meet the requirements described in Sec. 
1302.21(c)(2)(ii).
    (4) In order to receive a waiver under this section, a program must 
provide supporting evidence that demonstrates the locally-designed 
variation effectively supports appropriate development and progress in 
children's early learning outcomes.
    (5) In order to receive a waiver of service duration, a program must 
meet the requirement in paragraph (c)(4) of this section, provide 
supporting evidence that it better meets the needs of parents than the 
applicable service duration minimums described in Sec. 1302.21(c)(1) 
and (c)(2)(iii) and (iv), Sec. 1302.22(c), or Sec. 1302.23(c), and 
assess the effectiveness of the variation in supporting appropriate 
development and progress in children's early learning outcomes.
    (d) Transition from previously approved program options. If, before 
November 7, 2016, a program was approved to operate a program option 
that is no longer allowable under Sec. Sec. 1302.21 through 1302.23, a 
program may continue to operate that model until July 31, 2018.



       Subpart C_Education and Child Development Program Services



Sec. 1302.30  Purpose.

    All programs must provide high-quality early education and child 
development services, including for children with disabilities, that 
promote children's cognitive, social, and emotional growth for later 
success in school. A center-based or family child care program must 
embed responsive and effective teacher-child interactions. A home-based 
program must promote secure parent-child relationships and help parents 
provide high-quality early learning experiences. All programs must 
implement a research-based curriculum, and screening and assessment 
procedures that support individualization and growth in the areas of 
development described in the Head Start Early Learning Outcomes 
Framework: Ages Birth to Five and support family engagement in 
children's learning and development. A program must deliver 
developmentally, culturally, and linguistically appropriate learning 
experiences in language, literacy, mathematics, social and emotional 
functioning, approaches to learning, science, physical skills, and 
creative arts. To deliver such high-quality early education and child 
development services, a center-based or family child care program must 
implement, at a minimum, the elements contained in Sec. Sec. 1302.31 
through 1302.34, and a home-based program must implement, at a minimum, 
the elements in Sec. Sec. 1302.33 and 1302.35.



Sec. 1302.31  Teaching and the learning environment.

    (a) Teaching and the learning environment. A center-based and family 
child care program must ensure teachers and other relevant staff provide 
responsive care, effective teaching, and an organized learning 
environment that promotes healthy development and children's skill 
growth aligned with the Head Start Early Learning Outcomes Framework: 
Ages Birth to Five, including for children with disabilities. A program 
must also support implementation of such environment with integration of 
regular and ongoing supervision and a system of individualized and 
ongoing professional development, as appropriate. This includes, at a 
minimum, the practices described in paragraphs (b) through (e) of this 
section.
    (b) Effective teaching practices. (1) Teaching practices must:
    (i) Emphasize nurturing and responsive practices, interactions, and 
environments that foster trust and emotional security; are communication 
and language rich; promote critical

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thinking and problem-solving; social, emotional, behavioral, and 
language development; provide supportive feedback for learning; motivate 
continued effort; and support all children's engagement in learning 
experiences and activities;
    (ii) Focus on promoting growth in the developmental progressions 
described in the Head Start Early Learning Outcomes Framework: Ages 
Birth to Five by aligning with and using the Framework and the curricula 
as described in Sec. 1302.32 to direct planning of organized 
activities, schedules, lesson plans, and the implementation of high-
quality early learning experiences that are responsive to and build upon 
each child's individual pattern of development and learning;
    (iii) Integrate child assessment data in individual and group 
planning; and,
    (iv) Include developmentally appropriate learning experiences in 
language, literacy, social and emotional development, math, science, 
social studies, creative arts, and physical development that are focused 
toward achieving progress outlined in the Head Start Early Learning 
Outcomes Framework: Ages Birth to Five.
    (2) For dual language learners, a program must recognize 
bilingualism and biliteracy as strengths and implement research-based 
teaching practices that support their development. These practices must:
    (i) For an infant or toddler dual language learner, include teaching 
practices that focus on the development of the home language, when there 
is a teacher with appropriate language competency, and experiences that 
expose the child to English;
    (ii) For a preschool age dual language learner, include teaching 
practices that focus on both English language acquisition and the 
continued development of the home language; or,
    (iii) If staff do not speak the home language of all children in the 
learning environment, include steps to support the development of the 
home language for dual language learners such as having culturally and 
linguistically appropriate materials available and other evidence-based 
strategies. Programs must work to identify volunteers who speak 
children's home language/s who could be trained to work in the classroom 
to support children's continued development of the home language.
    (c) Learning environment. A program must ensure teachers implement 
well-organized learning environments with developmentally appropriate 
schedules, lesson plans, and indoor and outdoor learning experiences 
that provide adequate opportunities for choice, play, exploration, and 
experimentation among a variety of learning, sensory, and motor 
experiences and:
    (1) For infants and toddlers, promote relational learning and 
include individualized and small group activities that integrate 
appropriate daily routines into a flexible schedule of learning 
experiences; and,
    (2) For preschool age children, include teacher-directed and child-
initiated activities, active and quiet learning activities, and 
opportunities for individual, small group, and large group learning 
activities.
    (d) Materials and space for learning. To support implementation of 
the curriculum and the requirements described in paragraphs (a), (b), 
(c), and (e) of this section a program must provide age-appropriate 
equipment, materials, supplies and physical space for indoor and outdoor 
learning environments, including functional space. The equipment, 
materials and supplies must include any necessary accommodations and the 
space must be accessible to children with disabilities. Programs must 
change materials intentionally and periodically to support children's 
interests, development, and learning.
    (e) Promoting learning through approaches to rest, meals, routines, 
and physical activity. (1) A program must implement an intentional, age 
appropriate approach to accommodate children's need to nap or rest, and 
that, for preschool age children in a program that operates for 6 hours 
or longer per day provides a regular time every day at which preschool 
age children are encouraged but not forced to rest or nap. A program 
must provide alternative quiet learning activities for children who do 
not need or want to rest or nap.
    (2) A program must implement snack and meal times in ways that 
support development and learning. For bottle-

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fed infants, this approach must include holding infants during feeding 
to support socialization. Snack and meal times must be structured and 
used as learning opportunities that support teaching staff-child 
interactions and foster communication and conversations that contribute 
to a child's learning, development, and socialization. Programs are 
encouraged to meet this requirement with family style meals when 
developmentally appropriate. A program must also provide sufficient time 
for children to eat, not use food as reward or punishment, and not force 
children to finish their food.
    (3) A program must approach routines, such as hand washing and 
diapering, and transitions between activities, as opportunities for 
strengthening development, learning, and skill growth.
    (4) A program must recognize physical activity as important to 
learning and integrate intentional movement and physical activity into 
curricular activities and daily routines in ways that support health and 
learning. A program must not use physical activity as reward or 
punishment.



Sec. 1302.32  Curricula.

    (a) Curricula. (1) Center-based and family child care programs must 
implement developmentally appropriate research-based early childhood 
curricula, including additional curricular enhancements, as appropriate 
that:
    (i) Are based on scientifically valid research and have standardized 
training procedures and curriculum materials to support implementation;
    (ii) Are aligned with the Head Start Early Learning Outcomes 
Framework: Ages Birth to Five and, as appropriate, state early learning 
and development standards; and are sufficiently content-rich to promote 
measurable progress toward development and learning outlined in the 
Framework; and,
    (iii) Have an organized developmental scope and sequence that 
include plans and materials for learning experiences based on 
developmental progressions and how children learn.
    (2) A program must support staff to effectively implement curricula 
and at a minimum monitor curriculum implementation and fidelity, and 
provide support, feedback, and supervision for continuous improvement of 
its implementation through the system of training and professional 
development.
    (b) Adaptation. A program that chooses to make significant 
adaptations to a curriculum or a curriculum enhancement described in 
paragraph (a)(1) of this section to better meet the needs of one or more 
specific populations must use an external early childhood education 
curriculum or content area expert to develop such significant 
adaptations. A program must assess whether the adaptation adequately 
facilitates progress toward meeting school readiness goals, consistent 
with the process described in Sec. 1302.102(b) and (c). Programs are 
encouraged to partner with outside evaluators in assessing such 
adaptations.



Sec. 1302.33  Child screenings and assessments.

    (a) Screening. (1) In collaboration with each child's parent and 
with parental consent, a program must complete or obtain a current 
developmental screening to identify concerns regarding a child's 
developmental, behavioral, motor, language, social, cognitive, and 
emotional skills within 45 calendar days of when the child first attends 
the program or, for the home-based program option, receives a home 
visit. A program that operates for 90 days or less must complete or 
obtain a current developmental screening within 30 calendar days of when 
the child first attends the program.
    (2) A program must use one or more research-based developmental 
standardized screening tools to complete the screening. A program must 
use as part of the screening additional information from family members, 
teachers, and relevant staff familiar with the child's typical behavior.
    (3) If warranted through screening and additional relevant 
information and with direct guidance from a mental health or child 
development professional a program must, with the parent's consent, 
promptly and appropriately address any needs identified through:
    (i) Referral to the local agency responsible for implementing IDEA 
for a formal evaluation to assess the child's

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eligibility for services under IDEA as soon as possible, and not to 
exceed timelines required under IDEA; and,
    (ii) Partnership with the child's parents and the relevant local 
agency to support families through the formal evaluation process.
    (4) If a child is determined to be eligible for services under IDEA, 
the program must partner with parents and the local agency responsible 
for implementing IDEA, as appropriate, and deliver the services in 
subpart F of this part.
    (5) If, after the formal evaluation described in paragraph (a)(3)(i) 
of this section, the local agency responsible for implementing IDEA 
determines the child is not eligible for early intervention or special 
education and related services under IDEA, the program must:
    (i) Seek guidance from a mental health or child development 
professional to determine if the formal evaluation shows the child has a 
significant delay in one or more areas of development that is likely to 
interfere with the child's development and school readiness; and,
    (ii) If the child has a significant delay, partner with parents to 
help the family access services and supports to help address the child's 
identified needs.
    (A) Such additional services and supports may be available through a 
child's health insurance or it may be appropriate for the program to 
provide needed services and supports under section 504 of the 
Rehabilitation Act if the child satisfies the definition of disability 
in 29 U.S.C. 705(9)(b) of the Rehabilitation Act, to ensure that the 
child who satisfies the definition of disability in 29 U.S.C. 705(9)(b) 
of the Rehabilitation Act is not excluded from the program on the basis 
of disability.
    (B) A program may use program funds for such services and supports 
when no other sources of funding are available.
    (b) Assessment for individualization. (1) A program must conduct 
standardized and structured assessments, which may be observation-based 
or direct, for each child that provide ongoing information to evaluate 
the child's developmental level and progress in outcomes aligned to the 
goals described in the Head Start Early Learning Child Outcomes 
Framework: Ages Birth to Five. Such assessments must result in usable 
information for teachers, home visitors, and parents and be conducted 
with sufficient frequency to allow for individualization within the 
program year.
    (2) A program must regularly use information from paragraph (b)(1) 
of this section along with informal teacher observations and additional 
information from family and staff, as relevant, to determine a child's 
strengths and needs, inform and adjust strategies to better support 
individualized learning and improve teaching practices in center-based 
and family child care settings, and improve home visit strategies in 
home-based models.
    (3) If warranted from the information gathered from paragraphs 
(b)(1) and (2) of this section and with direct guidance from a mental 
health or child development professional and a parent's consent, a 
program must refer the child to the local agency responsible for 
implementing IDEA for a formal evaluation to assess a child's 
eligibility for services under IDEA.
    (c) Characteristics of screenings and assessments. (1) Screenings 
and assessments must be valid and reliable for the population and 
purpose for which they will be used, including by being conducted by 
qualified and trained personnel, and being age, developmentally, 
culturally and linguistically appropriate, and appropriate for children 
with disabilities, as needed.
    (2) If a program serves a child who speaks a language other than 
English, a program must use qualified bilingual staff, contractor, or 
consultant to:
    (i) Assess language skills in English and in the child's home 
language, to assess both the child's progress in the home language and 
in English language acquisition;
    (ii) Conduct screenings and assessments for domains other than 
language skills in the language or languages that best capture the 
child's development and skills in the specific domain; and,
    (iii) Ensure those conducting the screening or assessment know and 
understand the child's language and culture and have sufficient skill 
level in

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the child's home language to accurately administer the screening or 
assessment and to record and understand the child's responses, 
interactions, and communications.
    (3) If a program serves a child who speaks a language other than 
English and qualified bilingual staff, contractors, or consultants are 
not able to conduct screenings and assessments, a program must use an 
interpreter in conjunction with a qualified staff person to conduct 
screenings and assessments as described in paragraphs (c)(2)(i) through 
(iii) of this section.
    (4) If a program serves a child who speaks a language other than 
English and can demonstrate that there is not a qualified bilingual 
staff person or interpreter, then screenings and assessments may be 
conducted in English. In such a case, a program must also gather and use 
other information, including structured observations over time and 
information gathered in a child's home language from the family, for use 
in evaluating the child's development and progress.
    (d) Prohibitions on use of screening and assessment data. The use of 
screening and assessment items and data on any screening or assessment 
authorized under this subchapter by any agent of the federal government 
is prohibited for the purposes of ranking, comparing, or otherwise 
evaluating individual children for purposes other than research, 
training, or technical assistance, and is prohibited for the purposes of 
providing rewards or sanctions for individual children or staff. A 
program must not use screening or assessments to exclude children from 
enrollment or participation.



Sec. 1302.34  Parent and family engagement in education and child 
development services.

    (a) Purpose. Center-based and family child care programs must 
structure education and child development services to recognize parents' 
roles as children's lifelong educators, and to encourage parents to 
engage in their child's education.
    (b) Engaging parents and family members. A program must offer 
opportunities for parents and family members to be involved in the 
program's education services and implement policies to ensure:
    (1) The program's settings are open to parents during all program 
hours;
    (2) Teachers regularly communicate with parents to ensure they are 
well-informed about their child's routines, activities, and behavior;
    (3) Teachers hold parent conferences, as needed, but no less than 
two times per program year, to enhance the knowledge and understanding 
of both staff and parents of the child's education and developmental 
progress and activities in the program;
    (4) Parents have the opportunity to learn about and to provide 
feedback on selected curricula and instructional materials used in the 
program;
    (5) Parents and family members have opportunities to volunteer in 
the class and during group activities;
    (6) Teachers inform parents, about the purposes of and the results 
from screenings and assessments and discuss their child's progress;
    (7) Teachers, except those described in paragraph (b)(8) of this 
section, conduct at least two home visits per program year for each 
family, including one before the program year begins, if feasible, to 
engage the parents in the child's learning and development, except that 
such visits may take place at a program site or another safe location 
that affords privacy at the parent's request, or if a visit to the home 
presents significant safety hazards for staff; and,
    (8) Teachers that serve migrant or seasonal families make every 
effort to conduct home visits to engage the family in the child's 
learning and development.



Sec. 1302.35  Education in home-based programs.

    (a) Purpose. A home-based program must provide home visits and group 
socialization activities that promote secure parent-child relationships 
and help parents provide high-quality early learning experiences in 
language, literacy, mathematics, social and emotional functioning, 
approaches to learning, science, physical skills, and creative arts. A 
program must implement a research-based curriculum that

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delivers developmentally, linguistically, and culturally appropriate 
home visits and group socialization activities that support children's 
cognitive, social, and emotional growth for later success in school.
    (b) Home-based program design. A home-based program must ensure all 
home visits are:
    (1) Planned jointly by the home visitor and parents, and reflect the 
critical role of parents in the early learning and development of their 
children, including that the home visitor is able to effectively 
communicate with the parent, directly or through an interpreter;
    (2) Planned using information from ongoing assessments that 
individualize learning experiences;
    (3) Scheduled with sufficient time to serve all enrolled children in 
the home and conducted with parents and are not conducted when only 
babysitters or other temporary caregivers are present;
    (4) Scheduled with sufficient time and appropriate staff to ensure 
effective delivery of services described in subparts D, E, F, and G of 
this part through home visiting, to the extent possible.
    (c) Home visit experiences. A program that operates the home-based 
option must ensure all home visits focus on promoting high-quality early 
learning experiences in the home and growth towards the goals described 
in the Head Start Early Learning Outcomes Framework: Ages Birth to Five 
and must use such goals and the curriculum to plan home visit activities 
that implement:
    (1) Age and developmentally appropriate, structured child-focused 
learning experiences;
    (2) Strategies and activities that promote parents' ability to 
support the child's cognitive, social, emotional, language, literacy, 
and physical development;
    (3) Strategies and activities that promote the home as a learning 
environment that is safe, nurturing, responsive, and language- and 
communication- rich;
    (4) Research-based strategies and activities for children who are 
dual language learners that recognize bilingualism and biliteracy as 
strengths, and:
    (i) For infants and toddlers, focus on the development of the home 
language, while providing experiences that expose both parents and 
children to English; and,
    (ii) For preschoolers, focus on both English language acquisition 
and the continued development of the home language; and,
    (5) Follow-up with the families to discuss learning experiences 
provided in the home between each visit, address concerns, and inform 
strategies to promote progress toward school readiness goals.
    (d) Home-based curriculum. A program that operates the home-based 
option must:
    (1) Ensure home-visiting and group socializations implement a 
developmentally appropriate research-based early childhood home-based 
curriculum that:
    (i) Promotes the parent's role as the child's teacher through 
experiences focused on the parent-child relationship and, as 
appropriate, the family's traditions, culture, values, and beliefs;
    (ii) Aligns with the Head Start Early Learning Outcomes Framework: 
Ages Birth to Five and, as appropriate, state early learning standards, 
and, is sufficiently content-rich within the Framework to promote 
measurable progress toward goals outlined in the Framework; and,
    (iii) Has an organized developmental scope and sequence that 
includes plans and materials for learning experiences based on 
developmental progressions and how children learn.
    (2) Support staff in the effective implementation of the curriculum 
and at a minimum monitor curriculum implementation and fidelity, and 
provide support, feedback, and supervision for continuous improvement of 
its implementation through the system of training and professional 
development.
    (3) If a program chooses to make significant adaptations to a 
curriculum or curriculum enhancement to better meet the needs of one or 
more specific populations, a program must:
    (i) Partner with early childhood education curriculum or content 
experts; and,

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    (ii) Assess whether the adaptation adequately facilitates progress 
toward meeting school readiness goals consistent with the process 
described in Sec. 1302.102(b) and (c).
    (4) Provide parents with an opportunity to review selected curricula 
and instructional materials used in the program.
    (e) Group socialization. (1) A program that operates the home-based 
option must ensure group socializations are planned jointly with 
families, conducted with both child and parent participation, occur in a 
classroom, community facility, home or field trip setting, as 
appropriate.
    (2) Group socializations must be structured to:
    (i) Provide age appropriate activities for participating children 
that are intentionally aligned to school readiness goals, the Head Start 
Early Learning Outcomes Framework: Ages Birth to Five and the home-based 
curriculum; and,
    (ii) Encourage parents to share experiences related to their 
children's development with other parents in order to strengthen parent-
child relationships and to help promote parents understanding of child 
development;
    (3) For parents with preschoolers, group socializations also must 
provide opportunities for parents to participate in activities that 
support parenting skill development or family partnership goals 
identified in Sec. 1302.52(c), as appropriate and must emphasize peer 
group interactions designed to promote children's social, emotional and 
language development, and progress towards school readiness goals, while 
encouraging parents to observe and actively participate in activities, 
as appropriate.
    (f) Screening and assessments. A program that operates the home-
based option must implement provisions in Sec. 1302.33 and inform 
parents about the purposes of and the results from screenings and 
assessments and discuss their child's progress.



Sec. 1302.36  Tribal language preservation and revitalization.

    A program that serves American Indian and Alaska Native children may 
integrate efforts to preserve, revitalize, restore, or maintain the 
tribal language for these children into program services. Such language 
preservation and revitalization efforts may include full immersion in 
the tribal language for the majority of the hours of planned class 
operations. If children's home language is English, exposure to English 
as described in Sec. 1302.31(b)(2)(i) and (ii) is not required.



                    Subpart D_Health Program Services



Sec. 1302.40  Purpose.

    (a) A program must provide high-quality health, oral health, mental 
health, and nutrition services that are developmentally, culturally, and 
linguistically appropriate and that will support each child's growth and 
school readiness.
    (b) A program must establish and maintain a Health Services Advisory 
Committee that includes Head Start parents, professionals, and other 
volunteers from the community.



Sec. 1302.41  Collaboration and communication with parents.

    (a) For all activities described in this part, programs must 
collaborate with parents as partners in the health and well-being of 
their children in a linguistically and culturally appropriate manner and 
communicate with parents about their child's health needs and 
development concerns in a timely and effective manner.
    (b) At a minimum, a program must:
    (1) Obtain advance authorization from the parent or other person 
with legal authority for all health and developmental procedures 
administered through the program or by contract or agreement, and, 
maintain written documentation if they refuse to give authorization for 
health services; and,
    (2) Share with parents the policies for health emergencies that 
require rapid response on the part of staff or immediate medical 
attention.



Sec. 1302.42  Child health status and care.

    (a) Source of health care. (1) A program, within 30 calendar days 
after the child first attends the program or, for the home-based program 
option, receives a home visit, must consult with parents to determine 
whether each

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child has ongoing sources of continuous, accessible health care--
provided by a health care professional that maintains the child's 
ongoing health record and is not primarily a source of emergency or 
urgent care--and health insurance coverage.
    (2) If the child does not have such a source of ongoing care and 
health insurance coverage or access to care through the Indian Health 
Service, the program must assist families in accessing a source of care 
and health insurance that will meet these criteria, as quickly as 
possible.
    (b) Ensuring up-to-date child health status. (1) Within 90 calendar 
days after the child first attends the program or, for the home-based 
program option, receives a home visit, with the exceptions noted in 
paragraph (b)(3) of this section, a program must:
    (i) Obtain determinations from health care and oral health care 
professionals as to whether or not the child is up-to-date on a schedule 
of age appropriate preventive and primary medical and oral health care, 
based on: The well-child visits and dental periodicity schedules as 
prescribed by the Early and Periodic Screening, Diagnosis, and Treatment 
(EPSDT) program of the Medicaid agency of the state in which they 
operate, immunization recommendations issued by the Centers for Disease 
Control and Prevention, and any additional recommendations from the 
local Health Services Advisory Committee that are based on prevalent 
community health problems;
    (ii) Assist parents with making arrangements to bring the child up-
to-date as quickly as possible; and, if necessary, directly facilitate 
provision of health services to bring the child up-to-date with parent 
consent as described in Sec. 1302.41(b)(1).
    (2) Within 45 calendar days after the child first attends the 
program or, for the home-based program option, receives a home visit, a 
program must either obtain or perform evidence-based vision and hearing 
screenings.
    (3) If a program operates for 90 days or less, it has 30 days from 
the date the child first attends the program to satisfy paragraphs 
(b)(1) and (2) of this section.
    (4) A program must identify each child's nutritional health needs, 
taking into account available health information, including the child's 
health records, and family and staff concerns, including special dietary 
requirements, food allergies, and community nutrition issues as 
identified through the community assessment or by the Health Services 
Advisory Committee.
    (c) Ongoing care. (1) A program must help parents continue to follow 
recommended schedules of well-child and oral health care.
    (2) A program must implement periodic observations or other 
appropriate strategies for program staff and parents to identify any new 
or recurring developmental, medical, oral, or mental health concerns.
    (3) A program must facilitate and monitor necessary oral health 
preventive care, treatment and follow-up, including topical fluoride 
treatments. In communities where there is a lack of adequate fluoride 
available through the water supply and for every child with moderate to 
severe tooth decay, a program must also facilitate fluoride supplements, 
and other necessary preventive measures, and further oral health 
treatment as recommended by the oral health professional.
    (d) Extended follow-up care. (1) A program must facilitate further 
diagnostic testing, evaluation, treatment, and follow-up plan, as 
appropriate, by a licensed or certified professional for each child with 
a health problem or developmental delay, such as elevated lead levels or 
abnormal hearing or vision results that may affect child's development, 
learning, or behavior.
    (2) A program must develop a system to track referrals and services 
provided and monitor the implementation of a follow-up plan to meet any 
treatment needs associated with a health, oral health, social and 
emotional, or developmental problem.
    (3) A program must assist parents, as needed, in obtaining any 
prescribed medications, aids or equipment for medical and oral health 
conditions.
    (e) Use of funds. (1) A program must use program funds for the 
provision of diapers and formula for enrolled children during the 
program day.

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    (2) A program may use program funds for professional medical and 
oral health services when no other source of funding is available. When 
program funds are used for such services, grantee and delegate agencies 
must have written documentation of their efforts to access other 
available sources of funding.



Sec. 1302.43  Oral health practices.

    A program must promote effective oral health hygiene by ensuring all 
children with teeth are assisted by appropriate staff, or volunteers, if 
available, in brushing their teeth with toothpaste containing fluoride 
once daily.



Sec. 1302.44  Child nutrition.

    (a) Nutrition service requirements. (1) A program must design and 
implement nutrition services that are culturally and developmentally 
appropriate, meet the nutritional needs of and accommodate the feeding 
requirements of each child, including children with special dietary 
needs and children with disabilities. Family style meals are encouraged 
as described in Sec. 1302.31(e)(2).
    (2) Specifically, a program must:
    (i) Ensure each child in a program that operates for fewer than six 
hours per day receives meals and snacks that provide one third to one 
half of the child's daily nutritional needs;
    (ii) Ensure each child in a program that operates for six hours or 
more per day receives meals and snacks that provide one half to two 
thirds of the child's daily nutritional needs, depending upon the length 
of the program day;
    (iii) Serve three- to five-year-olds meals and snacks that conform 
to USDA requirements in 7 CFR parts 210, 220, and 226, and are high in 
nutrients and low in fat, sugar, and salt;
    (iv) Feed infants and toddlers according to their individual 
developmental readiness and feeding skills as recommended in USDA 
requirements outlined in 7 CFR parts 210, 220, and 226, and ensure 
infants and young toddlers are fed on demand to the extent possible;
    (v) Ensure bottle-fed infants are never laid down to sleep with a 
bottle;
    (vi) Serve all children in morning center-based settings who have 
not received breakfast upon arrival at the program a nourishing 
breakfast;
    (vii) Provide appropriate healthy snacks and meals to each child 
during group socialization activities in the home-based option;
    (viii) Promote breastfeeding, including providing facilities to 
properly store and handle breast milk and make accommodations, as 
necessary, for mothers who wish to breastfeed during program hours, and 
if necessary, provide referrals to lactation consultants or counselors; 
and,
    (ix) Make safe drinking water available to children during the 
program day.
    (b) Payment sources. A program must use funds from USDA Food, 
Nutrition, and Consumer Services child nutrition programs as the primary 
source of payment for meal services. Early Head Start and Head Start 
funds may be used to cover those allowable costs not covered by the 
USDA.



Sec. 1302.45  Child mental health and social and emotional well-being.

    (a) Wellness promotion. To support a program-wide culture that 
promotes children's mental health, social and emotional well-being, and 
overall health, a program must:
    (1) Provide supports for effective classroom management and positive 
learning environments; supportive teacher practices; and, strategies for 
supporting children with challenging behaviors and other social, 
emotional, and mental health concerns;
    (2) Secure mental health consultation services on a schedule of 
sufficient and consistent frequency to ensure a mental health consultant 
is available to partner with staff and families in a timely and 
effective manner;
    (3) Obtain parental consent for mental health consultation services 
at enrollment; and,
    (4) Build community partnerships to facilitate access to additional 
mental health resources and services, as needed.
    (b) Mental health consultants. A program must ensure mental health 
consultants assist:

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    (1) The program to implement strategies to identify and support 
children with mental health and social and emotional concerns;
    (2) Teachers, including family child care providers, to improve 
classroom management and teacher practices through strategies that 
include using classroom observations and consultations to address 
teacher and individual child needs and creating physical and cultural 
environments that promote positive mental health and social and 
emotional functioning;
    (3) Other staff, including home visitors, to meet children's mental 
health and social and emotional needs through strategies that include 
observation and consultation;
    (4) Staff to address prevalent child mental health concerns, 
including internalizing problems such as appearing withdrawn and 
externalizing problems such as challenging behaviors; and,
    (5) In helping both parents and staff to understand mental health 
and access mental health interventions, if needed.
    (6) In the implementation of the policies to limit suspension and 
prohibit expulsion as described in Sec. 1302.17.



Sec. 1302.46  Family support services for health, nutrition, 
and mental health.

    (a) Parent collaboration. Programs must collaborate with parents to 
promote children's health and well-being by providing medical, oral, 
nutrition and mental health education support services that are 
understandable to individuals, including individuals with low health 
literacy.
    (b) Opportunities. (1) Such collaboration must include opportunities 
for parents to:
    (i) Learn about preventive medical and oral health care, emergency 
first aid, environmental hazards, and health and safety practices for 
the home including health and developmental consequences of tobacco 
products use and exposure to lead, and safe sleep;
    (ii) Discuss their child's nutritional status with staff, including 
the importance of physical activity, healthy eating, and the negative 
health consequences of sugar-sweetened beverages, and how to select and 
prepare nutritious foods that meet the family's nutrition and food 
budget needs;
    (iii) Learn about healthy pregnancy and postpartum care, as 
appropriate, including breastfeeding support and treatment options for 
parental mental health or substance abuse problems, including perinatal 
depression;
    (iv) Discuss with staff and identify issues related to child mental 
health and social and emotional well-being, including observations and 
any concerns about their child's mental health, typical and atypical 
behavior and development, and how to appropriately respond to their 
child and promote their child's social and emotional development; and,
    (v) Learn about appropriate vehicle and pedestrian safety for 
keeping children safe.
    (2) A program must provide ongoing support to assist parents' 
navigation through health systems to meet the general health and 
specifically identified needs of their children and must assist parents:
    (i) In understanding how to access health insurance for themselves 
and their families, including information about private and public 
health insurance and designated enrollment periods;
    (ii) In understanding the results of diagnostic and treatment 
procedures as well as plans for ongoing care; and,
    (iii) In familiarizing their children with services they will 
receive while enrolled in the program and to enroll and participate in a 
system of ongoing family health care.



Sec. 1302.47  Safety practices.

    (a) A program must establish, train staff on, implement, and enforce 
a system of health and safety practices that ensure children are kept 
safe at all times. A program should consult Caring for our Children 
Basics, available at http://www.acf.hhs.gov/sites/default/files/ecd/
caring_for_our_children_basics.pdf, for additional information to 
develop and implement adequate safety policies and practices described 
in this part.
    (b) A program must develop and implement a system of management, 
including ongoing training, oversight,

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correction and continuous improvement in accordance with Sec. 1302.102, 
that includes policies and practices to ensure all facilities, equipment 
and materials, background checks, safety training, safety and hygiene 
practices and administrative safety procedures are adequate to ensure 
child safety. This system must ensure:
    (1) Facilities. All facilities where children are served, including 
areas for learning, playing, sleeping, toileting, and eating are, at a 
minimum:
    (i) Meet licensing requirements in accordance with Sec. Sec. 
1302.21(d)(1) and 1302.23(d);
    (ii) Clean and free from pests;
    (iii) Free from pollutants, hazards and toxins that are accessible 
to children and could endanger children's safety;
    (iv) Designed to prevent child injury and free from hazards, 
including choking, strangulation, electrical, and drowning hazards, 
hazards posed by appliances and all other safety hazards;
    (v) Well lit, including emergency lighting;
    (vi) Equipped with safety supplies that are readily accessible to 
staff, including, at a minimum, fully-equipped and up-to-date first aid 
kits and appropriate fire safety supplies;
    (vii) Free from firearms or other weapons that are accessible to 
children;
    (viii) Designed to separate toileting and diapering areas from areas 
for preparing food, cooking, eating, or children's activities; and,
    (ix) Kept safe through an ongoing system of preventative 
maintenance.
    (2) Equipment and materials. Indoor and outdoor play equipment, 
cribs, cots, feeding chairs, strollers, and other equipment used in the 
care of enrolled children, and as applicable, other equipment and 
materials meet standards set by the Consumer Product Safety Commission 
(CPSC) or the American Society for Testing and Materials, International 
(ASTM). All equipment and materials must at a minimum:
    (i) Be clean and safe for children's use and are appropriately 
disinfected;
    (ii) Be accessible only to children for whom they are age 
appropriate;
    (iii) Be designed to ensure appropriate supervision of children at 
all times;
    (iv) Allow for the separation of infants and toddlers from 
preschoolers during play in center-based programs; and,
    (v) Be kept safe through an ongoing system of preventative 
maintenance.
    (3) Background checks. All staff have complete background checks in 
accordance with Sec. 1302.90(b).
    (4) Safety training--(i) Staff with regular child contact. All staff 
with regular child contact have initial orientation training within 
three months of hire and ongoing training in all state, local, tribal, 
federal and program-developed health, safety and child care requirements 
to ensure the safety of children in their care; including, at a minimum, 
and as appropriate based on staff roles and ages of children they work 
with, training in:
    (A) The prevention and control of infectious diseases;
    (B) Prevention of sudden infant death syndrome and use of safe 
sleeping practices;
    (C) Administration of medication, consistent with standards for 
parental consent;
    (D) Prevention and response to emergencies due to food and allergic 
reactions;
    (E) Building and physical premises safety, including identification 
of and protection from hazards, bodies of water, and vehicular traffic;
    (F) Prevention of shaken baby syndrome, abusive head trauma, and 
child maltreatment;
    (G) Emergency preparedness and response planning for emergencies;
    (H) Handling and storage of hazardous materials and the appropriate 
disposal of biocontaminants;
    (I) Appropriate precautions in transporting children, if applicable;
    (J) First aid and cardiopulmonary resuscitation; and,
    (K) Recognition and reporting of child abuse and neglect, in 
accordance with the requirement at paragraph (b)(5) of this section.
    (ii) Staff without regular child contact. All staff with no regular 
responsibility for or contact with children have initial orientation 
training within three

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months of hire; ongoing training in all state, local, tribal, federal 
and program-developed health and safety requirements applicable to their 
work; and training in the program's emergency and disaster preparedness 
procedures.
    (5) Safety practices. All staff and consultants follow appropriate 
practices to keep children safe during all activities, including, at a 
minimum:
    (i) Reporting of suspected or known child abuse and neglect, 
including that staff comply with applicable federal, state, local, and 
tribal laws;
    (ii) Safe sleep practices, including ensuring that all sleeping 
arrangements for children under 18 months of age use firm mattresses or 
cots, as appropriate, and for children under 12 months, soft bedding 
materials or toys must not be used;
    (iii) Appropriate indoor and outdoor supervision of children at all 
times;
    (iv) Only releasing children to an authorized adult, and;
    (v) All standards of conduct described in Sec. 1302.90(c).
    (6) Hygiene practices. All staff systematically and routinely 
implement hygiene practices that at a minimum ensure:
    (i) Appropriate toileting, hand washing, and diapering procedures 
are followed;
    (ii) Safe food preparation; and,
    (iii) Exposure to blood and body fluids are handled consistent with 
standards of the Occupational Safety Health Administration.
    (7) Administrative safety procedures. Programs establish, follow, 
and practice, as appropriate, procedures for, at a minimum:
    (i) Emergencies;
    (ii) Fire prevention and response;
    (iii) Protection from contagious disease, including appropriate 
inclusion and exclusion policies for when a child is ill, and from an 
infectious disease outbreak, including appropriate notifications of any 
reportable illness;
    (iv) The handling, storage, administration, and record of 
administration of medication;
    (v) Maintaining procedures and systems to ensure children are only 
released to an authorized adult; and,
    (vi) Child specific health care needs and food allergies that 
include accessible plans of action for emergencies. For food allergies, 
a program must also post individual child food allergies prominently 
where staff can view wherever food is served.
    (8) Disaster preparedness plan. The program has all-hazards 
emergency management/disaster preparedness and response plans for more 
and less likely events including natural and manmade disasters and 
emergencies, and violence in or near programs.
    (c) A program must report any safety incidents in accordance with 
Sec. 1302.102(d)(1)(ii).



       Subpart E_Family and Community Engagement Program Services



Sec. 1302.50  Family engagement.

    (a) Purpose. A program must integrate parent and family engagement 
strategies into all systems and program services to support family well-
being and promote children's learning and development. Programs are 
encouraged to develop innovative two-generation approaches that address 
prevalent needs of families across their program that may leverage 
community partnerships or other funding sources.
    (b) Family engagement approach. A program must:
    (1) Recognize parents as their children's primary teachers and 
nurturers and implement intentional strategies to engage parents in 
their children's learning and development and support parent-child 
relationships, including specific strategies for father engagement;
    (2) Develop relationships with parents and structure services to 
encourage trust and respectful, ongoing two-way communication between 
staff and parents to create welcoming program environments that 
incorporate the unique cultural, ethnic, and linguistic backgrounds of 
families in the program and community;
    (3) Collaborate with families in a family partnership process that 
identifies needs, interests, strengths, goals, and services and 
resources that support family well-being, including family safety, 
health, and economic stability;

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    (4) Provide parents with opportunities to participate in the program 
as employees or volunteers;
    (5) Conduct family engagement services in the family's preferred 
language, or through an interpreter, to the extent possible, and ensure 
families have the opportunity to share personal information in an 
environment in which they feel safe; and,
    (6) Implement procedures for teachers, home visitors, and family 
support staff to share information with each other, as appropriate and 
consistent with the requirements in part 1303, subpart C, of this 
chapter; FERPA; or IDEA, to ensure coordinated family engagement 
strategies with children and families in the classroom, home, and 
community.



Sec. 1302.51  Parent activities to promote child learning and
development.

    (a) A program must promote shared responsibility with parents for 
children's early learning and development, and implement family 
engagement strategies that are designed to foster parental confidence 
and skills in promoting children's learning and development. These 
strategies must include:
    (1) Offering activities that support parent-child relationships and 
child development including language, dual language, literacy, and bi-
literacy development as appropriate;
    (2) Providing parents with information about the importance of their 
child's regular attendance, and partner with them, as necessary, to 
promote consistent attendance; and,
    (3) For dual language learners, information and resources for 
parents about the benefits of bilingualism and biliteracy.
    (b) A program must, at a minimum, offer opportunities for parents to 
participate in a research-based parenting curriculum that builds on 
parents' knowledge and offers parents the opportunity to practice 
parenting skills to promote children's learning and development. A 
program that chooses to make significant adaptations to the parenting 
curriculum to better meet the needs of one or more specific populations 
must work with an expert or experts to develop such adaptations.



Sec. 1302.52  Family partnership services.

    (a) Family partnership process. A program must implement a family 
partnership process that includes a family partnership agreement and the 
activities described in this section to support family well-being, 
including family safety, health, and economic stability, to support 
child learning and development, to provide, if applicable, services and 
supports for children with disabilities, and to foster parental 
confidence and skills that promote the early learning and development of 
their children. The process must be initiated as early in the program 
year as possible and continue for as long as the family participates in 
the program, based on parent interest and need.
    (b) Identification of family strengths and needs. A program must 
implement intake and family assessment procedures to identify family 
strengths and needs related to the family engagement outcomes as 
described in the Head Start Parent Family and Community Engagement 
Framework, including family well-being, parent-child relationships, 
families as lifelong educators, families as learners, family engagement 
in transitions, family connections to peers and the local community, and 
families as advocates and leaders.
    (c) Individualized family partnership services. A program must offer 
individualized family partnership services that:
    (1) Collaborate with families to identify interests, needs, and 
aspirations related to the family engagement outcomes described in 
paragraph (b) of this section;
    (2) Help families achieve identified individualized family 
engagement outcomes;
    (3) Establish and implement a family partnership agreement process 
that is jointly developed and shared with parents in which staff and 
families review individual progress, revise goals, evaluate and track 
whether identified needs and goals are met, and adjust strategies on an 
ongoing basis, as necessary, and;
    (4) Assign staff and resources based on the urgency and intensity of 
identified family needs and goals.

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    (d) Existing plans and community resources. In implementing this 
section, a program must take into consideration any existing plans for 
the family made with other community agencies and availability of other 
community resources to address family needs, strengths, and goals, in 
order to avoid duplication of effort.



Sec. 1302.53  Community partnerships and coordination with other
early childhood and education programs.

    (a) Community partnerships. (1) A program must establish ongoing 
collaborative relationships and partnerships with community 
organizations such as establishing joint agreements, procedures, or 
contracts and arranging for onsite delivery of services as appropriate, 
to facilitate access to community services that are responsive to 
children's and families' needs and family partnership goals, and 
community needs and resources, as determined by the community 
assessment.
    (2) A program must establish necessary collaborative relationships 
and partnerships, with community organizations that may include:
    (i) Health care providers, including child and adult mental health 
professionals, Medicaid managed care networks, dentists, other health 
professionals, nutritional service providers, providers of prenatal and 
postnatal support, and substance abuse treatment providers;
    (ii) Individuals and agencies that provide services to children with 
disabilities and their families, elementary schools, state preschool 
providers, and providers of child care services;
    (iii) Family preservation and support services and child protective 
services and any other agency to which child abuse must be reported 
under state or tribal law;
    (iv) Educational and cultural institutions, such as libraries and 
museums, for both children and families;
    (v) Temporary Assistance for Needy Families, nutrition assistance 
agencies, workforce development and training programs, adult or family 
literacy, adult education, and post-secondary education institutions, 
and agencies or financial institutions that provide asset-building 
education, products and services to enhance family financial stability 
and savings;
    (vi) Housing assistance agencies and providers of support for 
children and families experiencing homelessness, including the local 
educational agency liaison designated under section 722(g)(1)(J)(ii) of 
the McKinney-Vento Homeless Assistance Act (42 U.S.C. 11431 et seq.);
    (vii) Domestic violence prevention and support providers; and,
    (viii) Other organizations or businesses that may provide support 
and resources to families.
    (b) Coordination with other programs and systems. A program must 
take an active role in promoting coordinated systems of comprehensive 
early childhood services to low-income children and families in their 
community through communication, cooperation, and the sharing of 
information among agencies and their community partners, while 
protecting the privacy of child records in accordance with subpart C of 
part 1303 of this chapter and applicable federal, state, local, and 
tribal laws.
    (1) Memorandum of understanding. To support coordination between 
Head Start and publicly funded preschool programs, a program must enter 
into a memorandum of understanding with the appropriate local entity 
responsible for managing publicly funded preschool programs in the 
service area of the program, as described in section 642(e)(5) of the 
Act.
    (2) Quality Rating and Improvement Systems. A program, with the 
exception of American Indian and Alaska Native programs, must 
participate in its state or local Quality Rating and Improvement System 
(QRIS) if:
    (i) Its state or local QRIS accepts Head Start monitoring data to 
document quality indicators included in the state's tiered system;
    (ii) Participation would not impact a program's ability to comply 
with the Head Start Program Performance Standards; and,
    (iii) The program has not provided the Office of Head Start with a 
compelling reason not to comply with this requirement.

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    (3) Data systems. A program, with the exception of American Indian 
and Alaska Native programs unless they would like to and to the extent 
practicable, should integrate and share relevant data with state 
education data systems, to the extent practicable, if the program can 
receive similar support and benefits as other participating early 
childhood programs.
    (4) American Indian and Alaska Native programs. An American Indian 
and Alaska Native program should determine whether or not it will 
participate in the systems described in paragraphs (b)(2) and (3) of 
this section.



      Subpart F_Additional Services for Children With Disabilities



Sec. 1302.60  Full participation in program services and activities.

    A program must ensure enrolled children with disabilities, including 
but not limited to those who are eligible for services under IDEA, and 
their families receive all applicable program services delivered in the 
least restrictive possible environment and that they fully participate 
in all program activities.



Sec. 1302.61  Additional services for children.

    (a) Additional services for children with disabilities. Programs 
must ensure the individualized needs of children with disabilities, 
including but not limited to those eligible for services under IDEA, are 
being met and all children have access to and can fully participate in 
the full range of activities and services. Programs must provide any 
necessary modifications to the environment, multiple and varied formats 
for instruction, and individualized accommodations and supports as 
necessary to support the full participation of children with 
disabilities. Programs must ensure all individuals with disabilities are 
protected from discrimination under and provided with all services and 
program modifications required by section 504 of the Rehabilitation Act 
(29 U.S.C. 794), the Americans with Disabilities Act (42 U.S.C. 12101 et 
seq.), and their implementing regulations.
    (b) Services during IDEA eligibility determination. While the local 
agency responsible for implementing IDEA determines a child's 
eligibility, a program must provide individualized services and 
supports, to the maximum extent possible, to meet the child's needs. 
Such additional supports may be available through a child's health 
insurance or it may be appropriate or required to provide the needed 
services and supports under section 504 of the Rehabilitation Act if the 
child satisfies the definition of disability in section 705(9)(b) of the 
Rehabilitation Act. When such supports are not available through 
alternate means, pending the evaluation results and eligibility 
determination, a program must individualize program services based on 
available information such as parent input and child observation and 
assessment data and may use program funds for these purposes.
    (c) Additional services for children with an IFSP or IEP. To ensure 
the individual needs of children eligible for services under IDEA are 
met, a program must:
    (1) Work closely with the local agency responsible for implementing 
IDEA, the family, and other service partners, as appropriate, to ensure:
    (i) Services for a child with disabilities will be planned and 
delivered as required by their IFSP or IEP, as appropriate;
    (ii) Children are working towards the goals in their IFSP or IEP;
    (iii) Elements of the IFSP or IEP that the program cannot implement 
are implemented by other appropriate agencies, related service providers 
and specialists;
    (iv) IFSPs and IEPs are being reviewed and revised, as required by 
IDEA; and,
    (v) Services are provided in a child's regular Early Head Start or 
Head Start classroom or family child care home to the greatest extent 
possible.
    (2) Plan and implement the transition services described in subpart 
G of this part, including at a minimum:
    (i) For children with an IFSP who are transitioning out of Early 
Head Start, collaborate with the parents, and the local agency 
responsible for implementing IDEA, to ensure appropriate steps are 
undertaken in a timely and appropriate manner to determine the

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child's eligibility for services under Part B of IDEA; and,
    (ii) For children with an IEP who are transitioning out of Head 
Start to kindergarten, collaborate with the parents, and the local 
agency responsible for implementing IDEA, to ensure steps are undertaken 
in a timely and appropriate manner to support the child and family as 
they transition to a new setting.



Sec. 1302.62  Additional services for parents.

    (a) Parents of all children with disabilities. (1) A program must 
collaborate with parents of children with disabilities, including but 
not limited to children eligible for services under IDEA, to ensure the 
needs of their children are being met, including support to help parents 
become advocates for services that meet their children's needs and 
information and skills to help parents understand their child's 
disability and how to best support the child's development;
    (2) A program must assist parents to access services and resources 
for their family, including securing adaptive equipment and devices and 
supports available through a child's health insurance or other entities, 
creating linkages to family support programs, and helping parents 
establish eligibility for additional support programs, as needed and 
practicable.
    (b) Parents of children eligible for services under IDEA. For 
parents of children eligible for services under IDEA, a program must 
also help parents:
    (1) Understand the referral, evaluation, and service timelines 
required under IDEA;
    (2) Actively participate in the eligibility process and IFSP or IEP 
development process with the local agency responsible for implementing 
IDEA, including by informing parents of their right to invite the 
program to participate in all meetings;
    (3) Understand the purposes and results of evaluations and services 
provided under an IFSP or IEP; and,
    (4) Ensure their children's needs are accurately identified in, and 
addressed through, the IFSP or IEP.



Sec. 1302.63  Coordination and collaboration with the local agency 
responsible for implementing IDEA.

    (a) A program must coordinate with the local agency responsible for 
implementing IDEA to identify children enrolled or who intend to enroll 
in a program that may be eligible for services under IDEA, including 
through the process described in Sec. 1302.33(a)(3) and through 
participation in the local agency Child Find efforts.
    (b) A program must work to develop interagency agreements with the 
local agency responsible for implementing IDEA to improve service 
delivery to children eligible for services under IDEA, including the 
referral and evaluation process, service coordination, promotion of 
service provision in the least restrictive appropriate community-based 
setting and reduction in dual enrollment which causes reduced time in a 
less restrictive setting, and transition services as children move from 
services provided under Part C of IDEA to services provided under Part B 
of IDEA and from preschool to kindergarten.
    (c) A program must participate in the development of the IFSP or IEP 
if requested by the child's parents, and the implementation of the IFSP 
or IEP. At a minimum, the program must offer:
    (1) To provide relevant information from its screenings, 
assessments, and observations to the team developing a child's IFSP or 
IEP; and,
    (2) To participate in meetings with the local agency responsible for 
implementing IDEA to develop or review an IEP or IFSP for a child being 
considered for Head Start enrollment, a currently enrolled child, or a 
child transitioning from a program.
    (d) A program must retain a copy of the IEP or IFSP for any child 
enrolled in Head Start for the time the child is in the program, 
consistent with the IDEA requirements in 34 CFR parts 300 and 303.



                      Subpart G_Transition Services



Sec. 1302.70  Transitions from Early Head Start.

    (a) Implementing transition strategies and practices. An Early Head 
Start program must implement strategies and

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practices to support successful transitions for children and their 
families transitioning out of Early Head Start.
    (b) Timing for transitions. To ensure the most appropriate placement 
and service following participation in Early Head Start, such programs 
must, at least six months prior to each child's third birthday, 
implement transition planning for each child and family that:
    (1) Takes into account the child's developmental level and health 
and disability status, progress made by the child and family while in 
Early Head Start, current and changing family circumstances and, the 
availability of Head Start, other public pre-kindergarten, and other 
early education and child development services in the community that 
will meet the needs of the child and family; and,
    (2) Transitions the child into Head Start or another program as soon 
as possible after the child's third birthday but permits the child to 
remain in Early Head Start for a limited number of additional months 
following the child's third birthday if necessary for an appropriate 
transition.
    (c) Family collaborations. A program must collaborate with parents 
of Early Head Start children to implement strategies and activities that 
support successful transitions from Early Head Start and, at a minimum, 
provide information about the child's progress during the program year 
and provide strategies for parents to continue their involvement in and 
advocacy for the education and development of their child.
    (d) Early Head Start and Head Start collaboration. Early Head Start 
and Head Start programs must work together to maximize enrollment 
transitions from Early Head Start to Head Start, consistent with the 
eligibility provisions in subpart A, and promote successful transitions 
through collaboration and communication.
    (e) Transition services for children with an IFSP. A program must 
provide additional transition services for children with an IFSP, at a 
minimum, as described in subpart F of this part.



Sec. 1302.71  Transitions from Head Start to kindergarten.

    (a) Implementing transition strategies and practices. A program that 
serves children who will enter kindergarten in the following year must 
implement transition strategies to support a successful transition to 
kindergarten.
    (b) Family collaborations for transitions. (1) A program must 
collaborate with parents of enrolled children to implement strategies 
and activities that will help parents advocate for and promote 
successful transitions to kindergarten for their children, including 
their continued involvement in the education and development of their 
child.
    (2) At a minimum, such strategies and activities must:
    (i) Help parents understand their child's progress during Head 
Start;
    (ii) Help parents understand practices they use to effectively 
provide academic and social support for their children during their 
transition to kindergarten and foster their continued involvement in the 
education of their child;
    (iii) Prepare parents to exercise their rights and responsibilities 
concerning the education of their children in the elementary school 
setting, including services and supports available to children with 
disabilities and various options for their child to participate in 
language instruction educational programs; and,
    (iv) Assist parents in the ongoing communication with teachers and 
other school personnel so that parents can participate in decisions 
related to their children's education.
    (c) Community collaborations for transitions. (1) A program must 
collaborate with local education agencies to support family engagement 
under section 642(b)(13) of the Act and state departments of education, 
as appropriate, and kindergarten teachers to implement strategies and 
activities that promote successful transitions to kindergarten for 
children, their families, and the elementary school.
    (2) At a minimum, such strategies and activities must include:
    (i) Coordination with schools or other appropriate agencies to 
ensure children's relevant records are transferred

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to the school or next placement in which a child will enroll, consistent 
with privacy requirements in subpart C of part 1303 of this chapter;
    (ii) Communication between appropriate staff and their counterparts 
in the schools to facilitate continuity of learning and development, 
consistent with privacy requirements in subpart C of part 1303 of this 
chapter; and,
    (iii) Participation, as possible, for joint training and 
professional development activities for Head Start and kindergarten 
teachers and staff.
    (3) A program that does not operate during the summer must 
collaborate with school districts to determine the availability of 
summer school programming for children who will be entering kindergarten 
and work with parents and school districts to enroll children in such 
programs, as appropriate.
    (d) Learning environment activities. A program must implement 
strategies and activities in the learning environment that promote 
successful transitions to kindergarten for enrolled children, and at a 
minimum, include approaches that familiarize children with the 
transition to kindergarten and foster confidence about such transition.
    (e) Transition services for children with an IEP. A program must 
provide additional transition services for children with an IEP, at a 
minimum, as described in subpart F of this part.



Sec. 1302.72  Transitions between programs.

    (a) For families and children who move out of the community in which 
they are currently served, including homeless families and foster 
children, a program must undertake efforts to support effective 
transitions to other Early Head Start or Head Start programs. If Early 
Head Start or Head Start is not available, the program should assist the 
family to identify another early childhood program that meets their 
needs.
    (b) A program that serves children whose families have decided to 
transition them to other early education programs, including public pre-
kindergarten, in the year prior to kindergarten entry must undertake 
strategies and activities described in Sec. 1302.71(b) and (c)(1) and 
(2), as practicable and appropriate.
    (c) A migrant or seasonal Head Start program must undertake efforts 
to support effective transitions to other migrant or seasonal Head Start 
or, if appropriate, Early Head Start or Head Start programs for families 
and children moving out of the community in which they are currently 
served.



              Subpart H_Services to Enrolled Pregnant Women



Sec. 1302.80  Enrolled pregnant women.

    (a) Within 30 days of enrollment, a program must determine whether 
each enrolled pregnant woman has an ongoing source of continuous, 
accessible health care--provided by a health care professional that 
maintains her ongoing health record and is not primarily a source of 
emergency or urgent care--and, as appropriate, health insurance 
coverage.
    (b) If an enrolled pregnant woman does not have a source of ongoing 
care as described in paragraph (a) of this section and, as appropriate, 
health insurance coverage, a program must, as quickly as possible, 
facilitate her access to such a source of care that will meet her needs.
    (c) A program must facilitate the ability of all enrolled pregnant 
women to access comprehensive services through referrals that, at a 
minimum, include nutritional counseling, food assistance, oral health 
care, mental health services, substance abuse prevention and treatment, 
and emergency shelter or transitional housing in cases of domestic 
violence.
    (d) A program must provide a newborn visit with each mother and baby 
to offer support and identify family needs. A program must schedule the 
newborn visit within two weeks after the infant's birth.



Sec. 1302.81  Prenatal and postpartum information, education, 
and services.

    (a) A program must provide enrolled pregnant women, fathers, and 
partners or other relevant family members the prenatal and postpartum 
information, education and services that address, as

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appropriate, fetal development, the importance of nutrition, the risks 
of alcohol, drugs, and smoking, labor and delivery, postpartum recovery, 
parental depression, infant care and safe sleep practices, and the 
benefits of breastfeeding.
    (b) A program must also address needs for appropriate supports for 
emotional well-being, nurturing and responsive caregiving, and father 
engagement during pregnancy and early childhood.



Sec. 1302.82  Family partnership services for enrolled pregnant women.

    (a) A program must engage enrolled pregnant women and other relevant 
family members, such as fathers, in the family partnership services as 
described in Sec. 1302.52 and include a specific focus on factors that 
influence prenatal and postpartum maternal and infant health.
    (b) A program must engage enrolled pregnant women and other relevant 
family members, such as fathers, in discussions about program options, 
plan for the infant's transition to program enrollment, and support the 
family during the transition process, where appropriate.



                  Subpart I_Human Resources Management



Sec. 1302.90  Personnel policies.

    (a) Establishing personnel policies and procedures. A program must 
establish written personnel policies and procedures that are approved by 
the governing body and policy council or policy committee and that are 
available to all staff.
    (b) Background checks and selection procedures. (1) Before a person 
is hired, directly or through contract, including transportation staff 
and contractors, a program must conduct an interview, verify references, 
conduct a sex offender registry check and obtain one of the following:
    (i) State or tribal criminal history records, including fingerprint 
checks; or,
    (ii) Federal Bureau of Investigation criminal history records, 
including fingerprint checks.
    (2) A program has 90 days after an employee is hired to complete the 
background check process by obtaining:
    (i) Whichever check listed in paragraph (b)(1) of this section was 
not obtained prior to the date of hire; and,
    (ii) Child abuse and neglect state registry check, if available.
    (3) A program must review the information found in each employment 
application and complete background check to assess the relevancy of any 
issue uncovered by the complete background check including any arrest, 
pending criminal charge, or conviction and must use Child Care and 
Development Fund (CCDF) disqualification factors described in 42 U.S.C. 
9858f(c)(1)(D) and 42 U.S.C. 9858f(h)(1) or tribal disqualifications 
factors to determine whether the prospective employee can be hired or 
the current employee must be terminated.
    (4) A program must ensure a newly hired employee, consultant, or 
contractor does not have unsupervised access to children until the 
complete background check process described in paragraphs (b)(1) through 
(3) of this section is complete.
    (5) A program must conduct the complete background check for each 
employee, consultant, or contractor at least once every five years which 
must include each of the four checks listed in paragraphs (b)(1) and (2) 
of this section, and review and make employment decisions based on the 
information as described in paragraph (b)(3) of this section, unless the 
program can demonstrate to the responsible HHS official that it has a 
more stringent system in place that will ensure child safety.
    (6) A program must consider current and former program parents for 
employment vacancies for which such parents apply and are qualified.
    (c) Standards of conduct. (1) A program must ensure all staff, 
consultants, contractors, and volunteers abide by the program's 
standards of conduct that:
    (i) Ensure staff, consultants, contractors, and volunteers implement 
positive strategies to support children's well-being and prevent and 
address challenging behavior;

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    (ii) Ensure staff, consultants, contractors, and volunteers do not 
maltreat or endanger the health or safety of children, including, at a 
minimum, that staff must not:
    (A) Use corporal punishment;
    (B) Use isolation to discipline a child;
    (C) Bind or tie a child to restrict movement or tape a child's 
mouth;
    (D) Use or withhold food as a punishment or reward;
    (E) Use toilet learning/training methods that punish, demean, or 
humiliate a child;
    (F) Use any form of emotional abuse, including public or private 
humiliation, rejecting, terrorizing, extended ignoring, or corrupting a 
child;
    (G) Physically abuse a child;
    (H) Use any form of verbal abuse, including profane, sarcastic 
language, threats, or derogatory remarks about the child or child's 
family; or,
    (I) Use physical activity or outdoor time as a punishment or reward;
    (iii) Ensure staff, consultants, contractors, and volunteers respect 
and promote the unique identity of each child and family and do not 
stereotype on any basis, including gender, race, ethnicity, culture, 
religion, disability, sexual orientation, or family composition;
    (iv) Require staff, consultants, contractors, and volunteers to 
comply with program confidentiality policies concerning personally 
identifiable information about children, families, and other staff 
members in accordance with subpart C of part 1303 of this chapter and 
applicable federal, state, local, and tribal laws; and,
    (v) Ensure no child is left alone or unsupervised by staff, 
consultants, contractors, or volunteers while under their care.
    (2) Personnel policies and procedures must include appropriate 
penalties for staff, consultants, and volunteers who violate the 
standards of conduct.
    (d) Communication with dual language learners and their families. 
(1) A program must ensure staff and program consultants or contractors 
are familiar with the ethnic backgrounds and heritages of families in 
the program and are able to serve and effectively communicate, either 
directly or through interpretation and translation, with children who 
are dual language learners and to the extent feasible, with families 
with limited English proficiency.
    (2) If a majority of children in a class or home-based program speak 
the same language, at least one class staff member or home visitor must 
speak such language.



Sec. 1302.91  Staff qualifications and competency requirements.

    (a) Purpose. A program must ensure all staff, consultants, and 
contractors engaged in the delivery of program services have sufficient 
knowledge, training and experience, and competencies to fulfill the 
roles and responsibilities of their positions and to ensure high-quality 
service delivery in accordance with the program performance standards. A 
program must provide ongoing training and professional development to 
support staff in fulfilling their roles and responsibilities.
    (b) Early Head Start or Head Start director. A program must ensure 
an Early Head Start or Head Start director hired after November 7, 2016, 
has, at a minimum, a baccalaureate degree and experience in supervision 
of staff, fiscal management, and administration.
    (c) Fiscal officer. A program must assess staffing needs in 
consideration of the fiscal complexity of the organization and 
applicable financial management requirements and secure the regularly 
scheduled or ongoing services of a fiscal officer with sufficient 
education and experience to meet their needs. A program must ensure a 
fiscal officer hired after November 7, 2016, is a certified public 
accountant or has, at a minimum, a baccalaureate degree in accounting, 
business, fiscal management, or a related field.
    (d) Child and family services management staff qualification 
requirements--(1) Family, health, and disabilities management. A program 
must ensure staff responsible for management and oversight of family 
services, health services, and services to children with disabilities 
hired after November 7, 2016, have, at a minimum, a baccalaureate 
degree, preferably related to one or more of the disciplines they 
oversee.
    (2) Education management. As prescribed in section 648A(a)(2)(B)(i) 
of the Act, a program must ensure staff and

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consultants that serve as education managers or coordinators, including 
those that serve as curriculum specialists, have a baccalaureate or 
advanced degree in early childhood education or a baccalaureate or 
advanced degree and equivalent coursework in early childhood education 
with early education teaching experience.
    (e) Child and family services staff--(1) Early Head Start center-
based teacher qualification requirements. As prescribed in section 
645A(h) of the Act, a program must ensure center-based teachers that 
provide direct services to infants and toddlers in Early Head Start 
centers have a minimum of a Child Development Associate (CDA) credential 
or comparable credential, and have been trained or have equivalent 
coursework in early childhood development with a focus on infant and 
toddler development.
    (2) Head Start center-based teacher qualification requirements. (i) 
The Secretary must ensure no less than fifty percent of all Head Start 
teachers, nationwide, have a baccalaureate degree in child development, 
early childhood education, or equivalent coursework.
    (ii) As prescribed in section 648A(a)(3)(B) of the Act, a program 
must ensure all center-based teachers have at least an associate's or 
bachelor's degree in child development or early childhood education, 
equivalent coursework, or otherwise meet the requirements of section 
648A(a)(3)(B) of the Act.
    (3) Head Start assistant teacher qualification requirements. As 
prescribed in section 648A(a)(2)(B)(ii) of the Act, a program must 
ensure Head Start assistant teachers, at a minimum, have a CDA 
credential or a state-awarded certificate that meets or exceeds the 
requirements for a CDA credential, are enrolled in a program that will 
lead to an associate or baccalaureate degree or, are enrolled in a CDA 
credential program to be completed within two years of the time of hire.
    (4) Family child care provider qualification requirements. (i) A 
program must ensure family child care providers have previous early 
child care experience and, at a minimum, are enrolled in a Family Child 
Care CDA program or state equivalent, or an associate's or baccalaureate 
degree program in child development or early childhood education prior 
to beginning service provision, and for the credential acquire it within 
eighteen months of beginning to provide services.
    (ii) By August 1, 2018, a child development specialist, as required 
for family child care in Sec. 1302.23(e), must have, at a minimum, a 
baccalaureate degree in child development, early childhood education, or 
a related field.
    (5) Center-based teachers, assistant teachers, and family child care 
provider competencies. A program must ensure center-based teachers, 
assistant teachers, and family child care providers demonstrate 
competency to provide effective and nurturing teacher-child 
interactions, plan and implement learning experiences that ensure 
effective curriculum implementation and use of assessment and promote 
children's progress across the standards described in the Head Start 
Early Learning Outcomes Framework: Ages Birth to Five and applicable 
state early learning and development standards, including for children 
with disabilities and dual language learners, as appropriate.
    (6) Home visitors. A program must ensure home visitors providing 
home-based education services:
    (i) Have a minimum of a home-based CDA credential or comparable 
credential, or equivalent coursework as part of an associate's or 
bachelor's degree; and,
    (ii) Demonstrate competency to plan and implement home-based 
learning experiences that ensure effective implementation of the home 
visiting curriculum and promote children's progress across the standards 
described in the Head Start Early Learning Outcomes Framework: Ages 
Birth to Five, including for children with disabilities and dual 
language learners, as appropriate, and to build respectful, culturally 
responsive, and trusting relationships with families.
    (7) Family services staff qualification requirements. A program must 
ensure staff who work directly with families on the family partnership 
process hired after November 7, 2016, have within eighteen months of 
hire, at a minimum, a credential or certification in

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social work, human services, family services, counseling or a related 
field.
    (8) Health professional qualification requirements. (i) A program 
must ensure health procedures are performed only by a licensed or 
certified health professional.
    (ii) A program must ensure all mental health consultants are 
licensed or certified mental health professionals. A program must use 
mental health consultants with knowledge of and experience in serving 
young children and their families, if available in the community.
    (iii) A program must use staff or consultants to support nutrition 
services who are registered dieticians or nutritionists with appropriate 
qualifications.
    (f) Coaches. A program must ensure coaches providing the services 
described in Sec. 1302.92(c) have a minimum of a baccalaureate degree 
in early childhood education or a related field.



Sec. 1302.92  Training and professional development.

    (a) A program must provide to all new staff, consultants, and 
volunteers an orientation that focuses on, at a minimum, the goals and 
underlying philosophy of the program and on the ways they are 
implemented.
    (b) A program must establish and implement a systematic approach to 
staff training and professional development designed to assist staff in 
acquiring or increasing the knowledge and skills needed to provide high-
quality, comprehensive services within the scope of their job 
responsibilities, and attached to academic credit as appropriate. At a 
minimum, the system must include:
    (1) Staff completing a minimum of 15 clock hours of professional 
development per year. For teaching staff, such professional development 
must meet the requirements described in section 648A(a)(5) of the Act.
    (2) Training on methods to handle suspected or known child abuse and 
neglect cases, that comply with applicable federal, state, local, and 
tribal laws;
    (3) Training for child and family services staff on best practices 
for implementing family engagement strategies in a systemic way, as 
described throughout this part;
    (4) Training for child and family services staff, including staff 
that work on family services, health, and disabilities, that builds 
their knowledge, experience, and competencies to improve child and 
family outcomes; and,
    (5) Research-based approaches to professional development for 
education staff, that are focused on effective curricula implementation, 
knowledge of the content in Head Start Early Learning Outcomes 
Framework: Ages Birth to Five, partnering with families, supporting 
children with disabilities and their families, providing effective and 
nurturing adult-child interactions, supporting dual language learners as 
appropriate, addressing challenging behaviors, preparing children and 
families for transitions (as described in subpart G of this part), and 
use of data to individualize learning experiences to improve outcomes 
for all children.
    (c) A program must implement a research-based, coordinated coaching 
strategy for education staff that:
    (1) Assesses all education staff to identify strengths, areas of 
needed support, and which staff would benefit most from intensive 
coaching;
    (2) At a minimum, provides opportunities for intensive coaching to 
those education staff identified through the process in paragraph (c)(1) 
of this section, including opportunities to be observed and receive 
feedback and modeling of effective teacher practices directly related to 
program performance goals;
    (3) At a minimum, provides opportunities for education staff not 
identified for intensive coaching through the process in paragraph 
(c)(1) of this section to receive other forms of research-based 
professional development aligned with program performance goals;
    (4) Ensures intensive coaching opportunities for the staff 
identified through the process in paragraph (c)(1) of this section that:
    (i) Align with the program's school readiness goals, curricula, and 
other approaches to professional development;
    (ii) Utilize a coach with adequate training and experience in adult 
learning and in using assessment data to

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drive coaching strategies aligned with program performance goals;
    (iii) Provide ongoing communication between the coach, program 
director, education director, and any other relevant staff; and,
    (iv) Include clearly articulated goals informed by the program's 
goals, as described in Sec. 1302.102, and a process for achieving those 
goals; and,
    (5) Establishes policies that ensure assessment results are not used 
to solely determine punitive actions for staff identified as needing 
support, without providing time and resources for staff to improve.
    (d) If a program needs to develop or significantly adapt their 
approach to research-based professional development to better meet the 
training needs of education staff, such that it does not include the 
requirements in paragraph (c) of this section, the program must partner 
with external early childhood education professional development 
experts. A program must assess whether the adaptation adequately 
supports staff professional development, consistent with the process 
laid out in subpart J of this part.



Sec. 1302.93  Staff health and wellness.

    (a) A program must ensure each staff member has an initial health 
examination and a periodic re-examination as recommended by their health 
care provider in accordance with state, tribal, or local requirements, 
that include screeners or tests for communicable diseases, as 
appropriate. The program must ensure staff do not, because of 
communicable diseases, pose a significant risk to the health or safety 
of others in the program that cannot be eliminated or reduced by 
reasonable accommodation, in accordance with the Americans with 
Disabilities Act and section 504 of the Rehabilitation Act.
    (b) A program must make mental health and wellness information 
available to staff regarding health issues that may affect their job 
performance, and must provide regularly scheduled opportunities to learn 
about mental health, wellness, and health education.



Sec. 1302.94  Volunteers.

    (a) A program must ensure regular volunteers have been screened for 
appropriate communicable diseases in accordance with state, tribal or 
local laws. In the absence of state, tribal or local law, the Health 
Services Advisory Committee must be consulted regarding the need for 
such screenings.
    (b) A program must ensure children are never left alone with 
volunteers.



          Subpart J_Program Management and Quality Improvement



Sec. 1302.100  Purpose.

    A program must provide management and a process of ongoing 
monitoring and continuous improvement for achieving program goals that 
ensures child safety and the delivery of effective, high-quality program 
services.



Sec. 1302.101  Management system.

    (a) Implementation. A program must implement a management system 
that:
    (1) Ensures a program, fiscal, and human resource management 
structure that provides effective management and oversight of all 
program areas and fiduciary responsibilities to enable delivery of high-
quality services in all of the program services described in subparts C, 
D, E, F, G, and H of this part;
    (2) Provides regular and ongoing supervision to support individual 
staff professional development and continuous program quality 
improvement;
    (3) Ensures budget and staffing patterns that promote continuity of 
care for all children enrolled, allow sufficient time for staff to 
participate in appropriate training and professional development, and 
allow for provision of the full range of services described in subparts 
C, D, E, F, G, and H of this part; and,
    (4) Maintains an automated accounting and record keeping system 
adequate for effective oversight.
    (b) Coordinated approaches. At the beginning of each program year, 
and on an ongoing basis throughout the year, a program must design and 
implement program-wide coordinated approaches that ensure:
    (1) The training and professional development system, as described 
in

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Sec. 1302.92, effectively supports the delivery and continuous 
improvement of high-quality services;
    (2) The full and effective participation of children who are dual 
language learners and their families, by:
    (i) Utilizing information from the program's community assessment 
about the languages spoken throughout the program service area to 
anticipate child and family needs;
    (ii) Identifying community resources and establishing ongoing 
collaborative relationships and partnerships with community 
organizations consistent with the requirements in Sec. 1302.53(a); and,
    (iii) Systematically and comprehensively addressing child and family 
needs by facilitating meaningful access to program services, including, 
at a minimum, curriculum, instruction, staffing, supervision, and family 
partnerships with bilingual staff, oral language assistance and 
interpretation, or translation of essential program materials, as 
appropriate.
    (3) The full and effective participation of all children with 
disabilities, including but not limited to children eligible for 
services under IDEA, by providing services with appropriate facilities, 
program materials, curriculum, instruction, staffing, supervision, and 
partnerships, at a minimum, consistent with section 504 of the 
Rehabilitation Act and the Americans with Disabilities Act; and,
    (4) The management of program data to effectively support the 
availability, usability, integrity, and security of data. A program must 
establish procedures on data management, and have them approved by the 
governing body and policy council, in areas such as quality of data and 
effective use and sharing of data, while protecting the privacy of child 
records in accordance with subpart C of part 1303 of this chapter and 
applicable federal, state, local, and tribal laws.



Sec. 1302.102  Achieving program goals.

    (a) Establishing program goals. A program, in collaboration with the 
governing body and policy council, must establish goals and measurable 
objectives that include:
    (1) Strategic long-term goals for ensuring programs are and remain 
responsive to community needs as identified in their community 
assessment as described in subpart A of this part;
    (2) Goals for the provision of educational, health, nutritional, and 
family and community engagement program services as described in the 
program performance standards to further promote the school readiness of 
enrolled children;
    (3) School readiness goals that are aligned with the Head Start 
Early Learning Outcomes Framework: Ages Birth to Five, state and tribal 
early learning standards, as appropriate, and requirements and 
expectations of schools Head Start children will attend, per the 
requirements of subpart B of part 1304 of this part; and,
    (4) Effective health and safety practices to ensure children are 
safe at all times, per the requirements in Sec. Sec. 1302.47, 
1302.90(b) and (c), 1302.92(c)(1), and 1302.94 and part 1303, subpart F, 
of this chapter.
    (b) Monitoring program performance--(1) Ongoing compliance oversight 
and correction. In order to ensure effective ongoing oversight and 
correction, a program must establish and implement a system of ongoing 
oversight that ensures effective implementation of the program 
performance standards, including ensuring child safety, and other 
applicable federal regulations as described in this part, and must:
    (i) Collect and use data to inform this process;
    (ii) Correct quality and compliance issues immediately, or as 
quickly as possible;
    (iii) Work with the governing body and the policy council to address 
issues during the ongoing oversight and correction process and during 
federal oversight; and,
    (iv) Implement procedures that prevent recurrence of previous 
quality and compliance issues, including previously identified 
deficiencies, safety incidents, and audit findings.
    (2) Ongoing assessment of program goals. A program must effectively 
oversee progress towards program goals on an ongoing basis and annually 
must:

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    (i) Conduct a self-assessment that uses program data including 
aggregated child assessment data, and professional development and 
parent and family engagement data as appropriate, to evaluate the 
program's progress towards meeting goals established under paragraph (a) 
of this section, compliance with program performance standards 
throughout the program year, and the effectiveness of the professional 
development and family engagement systems in promoting school readiness;
    (ii) Communicate and collaborate with the governing body and policy 
council, program staff, and parents of enrolled children when conducting 
the annual self-assessment; and,
    (iii) Submit findings of the self-assessment, including information 
listed in paragraph (b)(2)(i) of this section to the responsible HHS 
official.
    (c) Using data for continuous improvement. (1) A program must 
implement a process for using data to identify program strengths and 
needs, develop and implement plans that address program needs, and 
continually evaluate compliance with program performance standards and 
progress towards achieving program goals described in paragraph (a) of 
this section.
    (2) This process must:
    (i) Ensure data is aggregated, analyzed and compared in such a way 
to assist agencies in identifying risks and informing strategies for 
continuous improvement in all program service areas;
    (ii) Ensure child-level assessment data is aggregated and analyzed 
at least three times a year, including for sub-groups, such as dual 
language learners and children with disabilities, as appropriate, except 
in programs operating fewer than 90 days, and used with other program 
data described in paragraph (c)(2)(iv) of this section to direct 
continuous improvement related to curriculum choice and implementation, 
teaching practices, professional development, program design and other 
program decisions, including changing or targeting scope of services; 
and,
    (iii) For programs operating fewer than 90 days, ensures child 
assessment data is aggregated and analyzed at least twice during the 
program operating period, including for subgroups, such as dual language 
learners and children with disabilities, as appropriate, and used with 
other program data described in paragraph (c)(2)(iv) of this section to 
direct continuous improvement related to curriculum choice and 
implementation, teaching practices, professional development, program 
design and other program decisions, including changing or targeting 
scope of services;
    (iv) Use information from ongoing monitoring and the annual self-
assessment, and program data on teaching practice, staffing and 
professional development, child-level assessments, family needs 
assessments, and comprehensive services, to identify program needs, and 
develop and implement plans for program improvement; and,
    (v) Use program improvement plans as needed to either strengthen or 
adjust content and strategies for professional development, change 
program scope and services, refine school readiness and other program 
goals, and adapt strategies to better address the needs of sub-groups.
    (d) Reporting. (1) A program must submit:
    (i) Status reports, determined by ongoing oversight data, to the 
governing body and policy council, at least semi-annually;
    (ii) Reports, as appropriate, to the responsible HHS official 
immediately or as soon as practicable, related to any significant 
incidents affecting the health and safety of program participants, 
circumstances affecting the financial viability of the program, breaches 
of personally identifiable information, or program involvement in legal 
proceedings, any matter for which notification or a report to state, 
tribal, or local authorities is required by applicable law, including at 
a minimum:
    (A) Any reports regarding agency staff or volunteer compliance with 
federal, state, tribal, or local laws addressing child abuse and neglect 
or laws governing sex offenders;
    (B) Incidents that require classrooms or centers to be closed for 
any reason;

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    (C) Legal proceedings by any party that are directly related to 
program operations; and,
    (D) All conditions required to be reported under Sec. 1304.12, 
including disqualification from the Child and Adult Care Food Program 
(CACFP) and license revocation.
    (2) Annually, a program must publish and disseminate a report that 
complies with section 644(a)(2) of the Act and includes a summary of a 
program's most recent community assessment, as described in Sec. 
1302.11(b), consistent with privacy protections in subpart C of part 
1303 of this chapter.
    (3) If a program has had a deficiency identified, it must submit, to 
the responsible HHS official, a quality improvement plan as required in 
section 641A(e)(2) of the Act.



Sec. 1302.103  Implementation of program performance standards.

    (a) A current program as of November 7, 2016, must implement a 
program-wide approach for the effective and timely implementation of the 
changes to the program performance standards, including the purchase of 
materials and allocation of staff time, as appropriate.
    (b) A program's approach to implement the changes included in parts 
1301 through 1304 of this chapter must ensure adequate preparation for 
effective and timely service delivery to children and their families 
including, at a minimum, review of community assessment data to 
determine the most appropriate strategy for implementing required 
program changes, including assessing any changes in the number of 
children who can be served, as necessary, the purchase of and training 
on any curriculum, assessment, or other materials, as needed, assessment 
of program-wide professional development needs, assessment of staffing 
patterns, the development of coordinated approaches described in Sec. 
1302.101(b), and the development of appropriate protections for data 
sharing; and children enrolled in the program on November 7, 2016 are 
not displaced during a program year and that children leaving Early Head 
Start or Head Start at the end of the program year following November 7, 
2016 as a result of any slot reductions received services described in 
Sec. Sec. 1302.70 and 1302.72 to facilitate successful transitions to 
other programs.



PART 1303_FINANCIAL AND ADMINISTRATIVE REQUIREMENTS--Table of Contents



Sec.
1303.1 Overview.

                    Subpart A_Financial Requirements

1303.2 Purpose.
1303.3 Other requirements.
1303.4 Federal financial assistance, non-federal match, and waiver 
          requirements.
1303.5 Limitations on development and administrative costs.

                  Subpart B_Administrative Requirements

1303.10 Purpose.
1303.11 Limitations and prohibitions.
1303.12 Insurance and bonding.

         Subpart C_Protections for the Privacy of Child Records

1303.20 Establishing procedures.
1303.21 Program procedures--applicable confidentiality provisions.
1303.22 Disclosures with, and without, parental consent.
1303.23 Parental rights.
1303.24 Maintaining records.

               Subpart D_Delegation of Program Operations

1303.30 Grantee responsibility and accountability.
1303.31 Determining and establishing delegate agencies.
1303.32 Evaluations and corrective actions for delegate agencies.
1303.33 Termination of delegate agencies.

                          Subpart E_Facilities

1303.40 Purpose.
1303.41 Approval of previously purchased facilities.
1303.42 Eligibility to purchase, construct, and renovate facilities.
1303.43 Use of grant funds to pay fees.
1303.44 Applications to purchase, construct, and renovate facilities.
1304.45 Cost-comparison to purchase, construct, and renovate facilities.
1303.46 Recording and posting notices of federal interest.
1303.47 Contents of notices of federal interest.
1303.48 Grantee limitations on federal interest.
1303.49 Protection of federal interest in mortgage agreements.

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1303.50 Third party leases and occupancy arrangements.
1303.51 Subordination of the federal interest.
1303.52 Insurance, bonding, and maintenance.
1303.53 Copies of documents.
1303.54 Record retention.
1303.55 Procurement procedures.
1303.56 Inspection of work.

                        Subpart F_Transportation

1303.70 Purpose.
1303.71 Vehicles.
1303.72 Vehicle operation.
1303.73 Trip routing.
1303.74 Safety procedures.
1303.75 Children with disabilities.

    Authority: 42 U.S.C. 9801 et seq.

    Source: 81 FR 61412, Sept. 6, 2016, unless otherwise noted.



Sec. 1303.1  Overview.

    Section 641A of the Act requires that the Secretary modify as 
necessary program performance standards including administrative and 
financial management standards (section 641A(a)(1)(C)). This part 
specifies the financial and administrative requirements of agencies. 
Subpart A of this part outlines the financial requirements consistent 
with sections 640(b) and 644(b) and (c) of the Act. Subpart B of this 
part specifies the administrative requirements consistent with sections 
644(a)(1), 644(e), 653, 654, 655, 656, and 657A of the Act. Subpart C of 
this part implements the statutory provision at section 641A(b)(4) of 
the Act that directs the Secretary to ensure the confidentiality of any 
personally identifiable data, information, and records collected or 
maintained. Subpart D of this part prescribes regulations for the 
operation of delegate agencies consistent with Section 641(A)(d). 
Subpart E of this part implements the statutory requirements in Section 
644(c), (f) and (g) related to facilities. Subpart F prescribes 
regulations on transportation consistent with section 640(i) of the Act.



                    Subpart A_Financial Requirements



Sec. 1303.2  Purpose.

    This subpart establishes regulations applicable to program 
administration and grants management for all grants under the Act.



Sec. 1303.3  Other requirements.

    The following chart includes HHS regulations that apply to all 
grants made under the Act:

------------------------------------------------------------------------
            Cite                                 Title
------------------------------------------------------------------------
45 CFR part 16..............  Department grant appeals process.
45 CFR part 30..............  HHS Standards and Procedures for Claims
                               collection.
45 CFR part 46..............  Protection of human subjects.
45 CFR part 75..............  Uniform Administrative Requirements, Cost
                               Principles, and Audit Requirements for
                               Federal Awards.
45 CFR part 80..............  Nondiscrimination under programs receiving
                               federal assistance through the Department
                               of Health and Human Services--
                               Effectuation of title VI and VII of the
                               Civil Rights Act of 1964.
45 CFR part 81..............  Practice and procedure for hearings under
                               part 80.
45 CFR part 84..............  Nondiscrimination on the basis of handicap
                               in federally assisted programs.
45 CFR part 87..............  Equal treatment for faith based
                               organizations.
2 CFR part 170..............  FFATA Sub-award and executive
                               compensation.
2 CFR 25.110................  CCR/DUNS requirement.
------------------------------------------------------------------------



Sec. 1303.4  Federal financial assistance, non-federal match,
and waiver requirements.

    In accordance with section 640(b) of the Act, federal financial 
assistance to a grantee will not exceed 80 percent of the approved total 
program costs. A grantee must contribute 20 percent as non-federal match 
each budget period. The responsible HHS official may approve a waiver of 
all or a portion of the non-federal match requirement on the basis of 
the grantee's written application submitted for the budget period and 
any supporting evidence the responsible HHS official requires. In 
deciding whether to grant a waiver, the responsible HHS official will 
consider the circumstances specified at section 640(b) of the Act and 
whether the grantee has made a reasonable effort to comply with the non-
federal match requirement.

[[Page 118]]



Sec. 1303.5  Limitations on development and administrative costs.

    (a) Limitations. (1) Costs to develop and administer a program 
cannot be excessive or exceed 15 percent of the total approved program 
costs. Allowable costs to develop and administer a Head Start program 
cannot exceed 15 percent of the total approved program costs, which 
includes both federal costs and non-federal match, unless the 
responsible HHS official grants a waiver under paragraph (b) of this 
section that approves a higher percentage in order to carry out the 
purposes of the Act.
    (2) To assess total program costs and determine whether a grantee 
meets this requirement, the grantee must:
    (i) Determine the costs to develop and administer its program, 
including the local costs of necessary resources;
    (ii) Categorize total costs as development and administrative or 
program costs;
    (iii) Identify and allocate the portion of dual benefits costs that 
are for development and administration;
    (iv) Identify and allocate the portion of indirect costs that are 
for development and administration versus program costs; and,
    (v) Delineate all development and administrative costs in the grant 
application and calculate the percentage of total approved costs 
allocated to development and administration.
    (b) Waivers. (1) The responsible HHS official may grant a waiver for 
each budget period if a delay or disruption to program services is 
caused by circumstances beyond the agency's control, or if an agency is 
unable to administer the program within the 15 percent limitation and if 
the agency can demonstrate efforts to reduce its development and 
administrative costs.
    (2) If at any time within the grant funding cycle, a grantee 
estimates development and administration costs will exceed 15 percent of 
total approved costs, it must submit a waiver request to the responsible 
HHS official that explains why costs exceed the limit, that indicates 
the time period the waiver will cover, and that describes what the 
grantee will do to reduce its development and administrative costs to 
comply with the 15 percent limit after the waiver period.



                  Subpart B_Administrative Requirements



Sec. 1303.10  Purpose.

    A grantee must observe standards of organization, management, and 
administration that will ensure, so far as reasonably possible, that all 
program activities are conducted in a manner consistent with the 
purposes of the Act and the objective of providing assistance 
effectively, efficiently, and free of any taint of partisan political 
bias or personal or family favoritism.



Sec. 1303.11  Limitations and prohibitions.

    An agency must adhere to sections 644(e), 644(g)(3), 653, 654, 655, 
656, and 657A of the Act. These sections pertain to union organizing, 
the Davis-Bacon Act, limitations on compensation, nondiscrimination, 
unlawful activities, political activities, and obtaining parental 
consent.



Sec. 1303.12  Insurance and bonding.

    An agency must have an ongoing process to identify risks and have 
cost-effective insurance for those identified risks; a grantee must 
require the same for its delegates. The agency must specifically 
consider the risk of accidental injury to children while participating 
in the program. The grantee must submit proof of appropriate coverage in 
its initial application for funding. The process of identifying risks 
must also consider the risk of losses resulting from fraudulent acts by 
individuals authorized to disburse Head Start funds. Consistent with 45 
CFR part 75, if the agency lacks sufficient coverage to protect the 
federal government's interest, the agency must maintain adequate 
fidelity bond coverage.



         Subpart C_Protections for the Privacy of Child Records



Sec. 1303.20  Establishing procedures.

    A program must establish procedures to protect the confidentiality 
of any personally identifiable information (PII) in child records.

[[Page 119]]



Sec. 1303.21  Program procedures--applicable confidentiality
provisions.

    (a) If a program is an educational agency or institution that 
receives funds under a program administered by the Department of 
Education and therefore is subject to the confidentiality provisions 
under the Family Educational Rights and Privacy Act (FERPA), then it 
must comply with those confidentiality provisions of FERPA instead of 
the provisions in this subpart.
    (b) If a program serves a child who is referred to, or found 
eligible for services under, IDEA, then a program must comply with the 
applicable confidentiality provisions in Part B or Part C of IDEA to 
protect the PII in records of those children, and, therefore, the 
provisions in this subpart do not apply to those children.



Sec. 1303.22  Disclosures with, and without, parental consent.

    (a) Disclosure with parental consent. (1) Subject to the exceptions 
in paragraphs (b) and (c) of this section, the procedures to protect PII 
must require the program to obtain a parent's written consent before the 
program may disclose such PII from child records.
    (2) The procedures to protect PII must require the program to ensure 
the parent's written consent specifies what child records may be 
disclosed, explains why the records will be disclosed, and identifies 
the party or class of parties to whom the records may be disclosed. The 
written consent must be signed and dated.
    (3) ``Signed and dated written consent'' under this part may include 
a record and signature in electronic form that:
    (i) Identifies and authenticates a particular person as the source 
of the electronic consent; and,
    (ii) Indicates such person's approval of the information.
    (4) The program must explain to the parent that the granting of 
consent is voluntary on the part of the parent and may be revoked at any 
time. If a parent revokes consent, that revocation is not retroactive 
and therefore it does not apply to an action that occurred before the 
consent was revoked.
    (b) Disclosure without parental consent but with parental notice and 
opportunity to refuse. The procedures to protect PII must allow the 
program to disclose such PII from child records without parental consent 
if the program notifies the parent about the disclosure, provides the 
parent, upon the parent's request, a copy of the PII from child records 
to be disclosed in advance, and gives the parent an opportunity to 
challenge and refuse disclosure of the information in the records, 
before the program forwards the records to officials at a program, 
school, or school district in which the child seeks or intends to enroll 
or where the child is already enrolled so long as the disclosure is 
related to the child's enrollment or transfer.
    (c) Disclosure without parental consent. The procedures to protect 
PII must allow the program to disclose such PII from child records 
without parental consent to:
    (1) Officials within the program or acting for the program, such as 
contractors and subrecipients, if the official provides services for 
which the program would otherwise use employees, the program determines 
it is necessary for Head Start services, and the program maintains 
oversight with respect to the use, further disclosure, and maintenance 
of child records, such as through a written agreement;
    (2) Officials within the program, acting for the program, or from a 
federal or state entity, in connection with an audit or evaluation of 
education or child development programs, or for enforcement of or 
compliance with federal legal requirements of the program; provided the 
program maintains oversight with respect to the use, further disclosure, 
and maintenance of child records, such as through a written agreement, 
including the destruction of the PII when no longer needed for the 
purpose of the disclosure, except when the disclosure is specifically 
authorized by federal law or by the responsible HHS official;
    (3) Officials within the program, acting for the program, or from a 
federal or state entity, to conduct a study to

[[Page 120]]

improve child and family outcomes, including improving the quality of 
programs, for, or on behalf of, the program, provided the program 
maintains oversight with respect to the use, further disclosure, and 
maintenance of child records, such as through a written agreement, 
including the destruction of the PII when no longer needed for the 
purpose of the disclosure;
    (4) Appropriate parties in order to address a disaster, health or 
safety emergency during the period of the emergency, or a serious health 
and safety risk such as a serious food allergy, if the program 
determines that disclosing the PII from child records is necessary to 
protect the health or safety of children or other persons;
    (5) Comply with a judicial order or lawfully issued subpoena, 
provided the program makes a reasonable effort to notify the parent 
about all such subpoenas and court orders in advance of the compliance 
therewith, unless:
    (i) A court has ordered that neither the subpoena, its contents, nor 
the information provided in response be disclosed;
    (ii) The disclosure is in compliance with an ex parte court order 
obtained by the United States Attorney General (or designee not lower 
than an Assistant Attorney General) concerning investigations or 
prosecutions of an offense listed in 18 U.S.C. 2332b(g)(5)(B) or an act 
of domestic or international terrorism as defined in 18 U.S.C. 2331.
    (iii) A parent is a party to a court proceeding directly involving 
child abuse and neglect (as defined in section 3 of the Child Abuse 
Prevention and Treatment Act (42 U.S.C. 5101)) or dependency matters, 
and the order is issued in the context of that proceeding, additional 
notice to the parent by the program is not required; or,
    (iv) A program initiates legal action against a parent or a parent 
initiates legal action against a program, then a program may disclose to 
the court, also without a court order or subpoena, the child records 
relevant for the program to act as plaintiff or defendant.
    (6) The Secretary of Agriculture or an authorized representative 
from the Food and Nutrition Service to conduct program monitoring, 
evaluations, and performance measurements for the Child and Adult Care 
Food Program under the Richard B. Russell National School Lunch Act or 
the Child Nutrition Act of 1966, if the results will be reported in an 
aggregate form that does not identify any individual: Provided, that any 
data collected must be protected in a manner that will not permit the 
personal identification of students and their parents by other than the 
authorized representatives of the Secretary of Agriculture and any PII 
must be destroyed when the data are no longer needed for program 
monitoring, evaluations, and performance measurements;
    (7) A caseworker or other representative from a state, local, or 
tribal child welfare agency, who has the right to access a case plan for 
a child who is in foster care placement, when such agency is legally 
responsible for the child's care and protection, under state or tribal 
law, if the agency agrees in writing to protect PII, to use information 
from the child's case plan for specific purposes intended of addressing 
the child's needs, and to destroy information that is no longer needed 
for those purposes; and,
    (8) Appropriate parties in order to address suspected or known child 
maltreatment and is consistent with applicable federal, state, local, 
and tribal laws on reporting child abuse and neglect.
    (d) Written agreements. When a program establishes a written 
agreement with a third party, the procedures to protect such PII must 
require the program to annually review and, if necessary, update the 
agreement. If the third party violates the agreement, then the program 
may:
    (1) Provide the third party an opportunity to self-correct; or,
    (2) Prohibit the third party from access to records for a set period 
of time as established by the programs governing body and policy 
council.
    (e) Annual notice. The procedures to protect PII must require the 
program to annually notify parents of their rights in writing described 
in this subpart and applicable definitions in part 1305 of this chapter, 
and include in that notice a description of the types of PII that may be 
disclosed, to whom the PII

[[Page 121]]

may be disclosed, and what may constitute a necessary reason for the 
disclosure without parental consent as described in paragraph (c) of 
this section.
    (f) Limit on disclosing PII. A program must only disclose the 
information that is deemed necessary for the purpose of the disclosure.



Sec. 1303.23  Parental rights.

    (a) Inspect record. (1) A parent has the right to inspect child 
records.
    (2) If the parent requests to inspect child records, the program 
must make the child records available within a reasonable time, but no 
more than 45 days after receipt of request.
    (3) If a program maintains child records that contain information on 
more than one child, the program must ensure the parent only inspects 
information that pertains to the parent's child.
    (4) The program shall not destroy a child record with an outstanding 
request to inspect and review the record under this section.
    (b) Amend record. (1) A parent has the right to ask the program to 
amend information in the child record that the parent believes is 
inaccurate, misleading, or violates the child's privacy.
    (2) The program must consider the parent's request and, if the 
request is denied, render a written decision to the parent within a 
reasonable time that informs the parent of the right to a hearing.
    (c) Hearing. (1) If the parent requests a hearing to challenge 
information in the child record, the program must schedule a hearing 
within a reasonable time, notify the parent, in advance, about the 
hearing, and ensure the person who conducts the hearing does not have a 
direct interest in its outcome.
    (2) The program must ensure the hearing affords the parent a full 
and fair opportunity to present evidence relevant to the issues.
    (3) If the program determines from evidence presented at the hearing 
that the information in the child records is inaccurate, misleading, or 
violates the child's privacy, the program must either amend or remove 
the information and notify the parent in writing.
    (4) If the program determines from evidence presented at the hearing 
that information in the child records is accurate, does not mislead, or 
otherwise does not violate the child's privacy, the program must inform 
the parent of the right to place a statement in the child records that 
either comments on the contested information or that states why the 
parent disagrees with the program's decision, or both.
    (d) Right to copy of record. The program must provide a parent, free 
of charge, an initial copy of child records disclosed to third parties 
with parental consent and, upon parent request, an initial copy of child 
records disclosed to third parties, unless the disclosure was for a 
court that ordered neither the subpoena, its contents, nor the 
information furnished in response be disclosed.
    (e) Right to inspect written agreements. A parent has the right to 
review any written agreements with third parties.



Sec. 1303.24  Maintaining records.

    (a) A program must maintain child records in a manner that ensures 
only parents, and officials within the program or acting on behalf of 
the program have access, and such records must be destroyed within a 
reasonable timeframe after such records are no longer needed or required 
to be maintained.
    (b) A program must maintain, with the child records, for as long as 
the records are maintained, information on all individuals, agencies, or 
organizations to whom a disclosure of PII from the child records was 
made (except for program officials and parents) and why the disclosure 
was made. If a program uses a web-based data system to maintain child 
records, the program must ensure such child records are adequately 
protected and maintained according to current industry security 
standards.
    (c) If a parent places a statement in the child record, the program 
must maintain the statement with the contested part of the child record 
for as long as the program maintains the record and, disclose the 
statement whenever it discloses the portion of the child record to which 
the statement relates.

[[Page 122]]



               Subpart D_Delegation of Program Operations



Sec. 1303.30  Grantee responsibility and accountability.

    A grantee is accountable for the services its delegate agencies 
provide. The grantee supports, oversees and ensures delegate agencies 
provide high-quality services to children and families and meet all 
applicable Head Start requirements. The grantee can only terminate a 
delegate agency if the grantee shows cause why termination is necessary 
and provides a process for delegate agencies to appeal termination 
decisions. The grantee retains legal responsibility and authority and 
bears financial accountability for the program when services are 
provided by delegate agencies.



Sec. 1303.31  Determining and establishing delegate agencies.

    (a) If a grantee enters into an agreement with another entity to 
serve children, the grantee must determine whether the agreement meets 
the definition of ``delegate agency'' in section 637(3) of the Act.
    (b) A grantee must not award a delegate agency federal financial 
assistance unless there is a written agreement and the responsible HHS 
official approves the agreement before the grantee delegates program 
operations.



Sec. 1303.32  Evaluations and corrective actions for delegate agencies.

    A grantee must evaluate and ensure corrective action for delegate 
agencies according to section 641A(d) of the Act.



Sec. 1303.33  Termination of delegate agencies.

    (a) If a grantee shows cause why termination is appropriate or 
demonstrates cost effectiveness, the grantee may terminate a delegate 
agency's contract.
    (b) The grantee's decision to terminate must not be arbitrary or 
capricious.
    (c) The grantee must establish a process for defunding a delegate 
agency, including an appeal of a defunding decision and must ensure the 
process is fair and timely.
    (d) The grantee must notify the responsible HHS official about the 
appeal and its decision.



                          Subpart E_Facilities



Sec. 1303.40  Purpose.

    This subpart prescribes what a grantee must establish to show it is 
eligible to purchase, construct and renovate facilities as outlined in 
section 644(c), (f) and (g) of the Act. It explains how a grantee may 
apply for funds, details what measures a grantee must take to protect 
federal interest in facilities purchased, constructed or renovated with 
grant funds, and concludes with other administrative provisions. This 
subpart applies to major renovations. It only applies to minor 
renovations and repairs, when they are included with a purchase 
application and are part of purchase costs.



Sec. 1303.41  Approval of previously purchased facilities.

    If a grantee purchased a facility after December 31, 1986, and seeks 
to use grant funds to continue to pay purchase costs for the facility or 
to refinance current indebtedness and use grant funds to service the 
resulting debt, the grantee may apply for funds to meet those costs. The 
grantee must submit an application that conforms to requirements in this 
part and in the Act to the responsible HHS official. If the responsible 
HHS official approves the grantee's application, Head Start funds may be 
used to pay ongoing purchase costs, which include principal and interest 
on approved loans.



Sec. 1303.42  Eligibility to purchase, construct, and renovate
facilities.

    (a) Preliminary eligibility. (1) Before a grantee can apply for 
funds to purchase, construct, or renovate a facility under Sec. 
1303.44, it must establish that:
    (i) The facility will be available to Indian tribes, or rural or 
other low-income communities;
    (ii) The proposed purchase, construction or major renovation is 
within the grantee's designated service area; and,
    (iii) The proposed purchase, construction or major renovation is 
necessary because the lack of suitable facilities

[[Page 123]]

in the grantee's service area will inhibit the operation of the program.
    (2) If a program applies to construct a facility, that the 
construction of such facility is more cost-effective than the purchase 
of available facilities or renovation.
    (b) Proving a lack of suitable facilities. To satisfy paragraph 
(a)(1)(iii) of this section, the grantee must have a written statement 
from an independent real estate professional familiar with the 
commercial real estate market in the grantee's service area, that 
includes factors considered and supports how the real estate 
professional determined there are no other suitable facilities in the 
area.



Sec. 1303.43  Use of grant funds to pay fees.

    A grantee may submit a written request to the responsible HHS 
official for reasonable fees and costs necessary to determine 
preliminary eligibility under Sec. 1303.42 before it submits an 
application under Sec. 1303.44. If the responsible HHS official 
approves the grantee's application, the grantee may use federal funds to 
pay fees and costs.



Sec. 1303.44  Applications to purchase, construct, and renovate
facilities.

    (a) Application requirements. If a grantee is preliminarily eligible 
under Sec. 1303.42 to apply for funds to purchase, construct, or 
renovate a facility, it must submit to the responsible HHS official:
    (1) A statement that explains the anticipated effect the proposed 
purchase, construction or renovation has had or will have on program 
enrollment, activities and services, and how it determined what the 
anticipated effect would be;
    (2) A deed or other document showing legal ownership of the real 
property where facilities activity is proposed, legal description of the 
facility site, and an explanation why the location is appropriate for 
the grantee's service area;
    (3) Plans and specifications for the facility, including square 
footage, structure type, the number of rooms the facility will have or 
has, how the rooms will be used, where the structure will be positioned 
or located on the building site, and whether there is space available 
for outdoor play and for parking;
    (4) Certification by a licensed engineer or architect that the 
facility is, or will be upon completion, structurally sound and safe for 
use as a Head Start facility and that the facility complies, or will 
comply upon completion, with local building codes, applicable child care 
licensing requirements, the accessibility requirements of the Americans 
with Disabilities Act, section 504 of the Rehabilitation Act of 1973, 
the Flood Disaster Protection Act of 1973, and the National Historic 
Preservation Act of 1966;
    (5) A description of proposed renovations or repairs to make the 
facility suitable for program activities, and plans and specification 
that describe the facility after renovation or repair;
    (6) A proposed schedule that details when the grantee will acquire, 
renovate, repair and occupy the facility;
    (7) An estimate by a licensed independent certified appraiser of the 
facility's fair market value after proposed purchase and associated 
repairs and renovations construction, or major renovation is completed 
is required for all facilities activities except for major renovations 
to leased property;
    (8) The cost comparison described in Sec. 1303.45;
    (9) A statement that shows what share of the purchase, construction, 
or major renovation will be paid with grant funds and what the grantee 
proposes to contribute as a nonfederal match to the purchase, 
construction or major renovation;
    (10) A statement from a lender, if a grantee applies to use Head 
Start funds to continue purchase on a facility or refinance existing 
debt on a facility that indicates the lender is willing to comply with 
Sec. 1303.49;
    (11) The terms of any proposed or existing loan(s) related to 
purchase, construction or major renovation of the facility, including 
copies of any funding commitment letters, mortgages, promissory notes, 
potential security agreements to be entered into, information on all 
other sources of funding, construction or major renovation, and any 
restrictions or conditions imposed by other funding sources;

[[Page 124]]

    (12) A Phase I environmental site assessment that describes the 
environmental condition of the proposed facility site and any structures 
on the site;
    (13) A description of the efforts by the grantee to coordinate or 
collaborate with other providers in the community to seek assistance, 
including financial assistance, prior to the use of funds under this 
section; and,
    (14) Any additional information the responsible HHS official may 
require.
    (b) Additional requirements for leased properties. (1) If a grantee 
applies to renovate leased property, it must submit to the responsible 
HHS official information described in paragraph (a) of this section, a 
copy of the existing or proposed lease agreement, and the landlord or 
lessor's consent.
    (2) If a grantee applies to purchase a modular unit it intends to 
site on leased property or on other property the grantee does not own, 
the grantee must submit to the responsible HHS official information 
described in paragraph (a) of this section and a copy of the proposed 
lease or other occupancy agreement that will allow the grantee access to 
the modular unit for at least 15 years.
    (c) Non-federal match. Any non-federal match associated with 
facilities activities becomes part of the federal share of the facility.



Sec. 1303.45  Cost-comparison to purchase, construct, and renovate 
facilities.

    (a) Cost comparison. (1) If a grantee proposes to purchase, 
construct, or renovate a facility, it must submit a detailed cost 
estimate of the proposed activity, compare the costs associated with the 
proposed activity to other available alternatives in the service area, 
and provide any additional information the responsible HHS official 
requests. The grantee must demonstrate that the proposed activity will 
result in savings when compared to the costs that would be incurred to 
acquire the use of an alternative facility to carry out program.
    (2) In addition to requirements in paragraph (a)(1) of this section, 
the grantee must:
    (i) Identify who owns the property;
    (ii) List all costs related to the purchase, construction, or 
renovation;
    (iii) Identify costs over the structure's useful life, which is at 
least 20 years for a facility that the grantee purchased or constructed 
and at least 15 years for a modular unit the grantee renovated, and 
deferred costs, including mortgage balloon payments, as costs with 
associated due dates; and,
    (iv) Demonstrate how the proposed purchase, construction, or major 
renovation is consistent with program management and fiscal goals, 
community needs, enrollment and program options and how the proposed 
facility will support the grantee as it provides quality services to 
children and families.
    (b) Continue purchase or refinance. To use funds to continue 
purchase on a facility or to refinance an existing indebtedness, the 
grantee must compare the costs of continued purchase against the cost of 
purchasing a comparable facility in the service area over the remaining 
years of the facility's useful life. The grantee must demonstrate that 
the proposed activity will result in savings when compared to the cost 
that would be incurred to acquire the use of an alternative facility to 
carry out the program.
    (c) Multi-purpose use. If the grantee intends to use a facility to 
operate a Head Start program and for another purpose, it must disclose 
what percentage of the facility will be used for non-Head Start 
activities, along with costs associated with those activities, in 
accordance with applicable cost principles.



Sec. 1303.46  Recording and posting notices of federal interest.

    (a) Survival of federal interest. A grantee that receives funds 
under this subpart must file notices of federal interest as set forth in 
paragraph (b) of this section. Federal interest cannot be defeated by a 
grantee's failure to file a notice of federal interest.
    (b) Recording notices of federal interest. (1) If a grantee uses 
federal funds to purchase real property or a facility, excluding modular 
units, appurtenant to real property, it must record a notice of federal 
interest in the official real property records for the jurisdiction 
where the facility is or will be located. The grantee must file the 
notice of federal interest as soon as it uses Head

[[Page 125]]

Start funds to either fully or partially purchase a facility or real 
property where a facility will be constructed or as soon as it receives 
permission from the responsible HHS official to use Head Start funds to 
continue purchase on a facility.
    (2) If a grantee uses federal funds in whole or in part to construct 
a facility, it must record the notice of federal interest in the 
official real property records for the jurisdiction in which the 
facility is located as soon as it receives the notice of award to 
construct the facility.
    (3) If a grantee uses federal funds to renovate a facility that it, 
or a third party owns, the grantee must record the notice of federal 
interest in the official real property records for the jurisdiction in 
which the facility is located as soon as it receives the notice of award 
to renovate the facility.
    (4) If a grantee uses federal funds in whole or in part to purchase 
a modular unit or to renovate a modular unit, the grantee must post the 
notice of federal interest, in clearly visible locations, on the 
exterior of the modular unit and inside the modular unit.



Sec. 1303.47  Contents of notices of federal interest.

    (a) Facility and real property a grantee owns. A notice of federal 
interest for a facility, other than a modular unit, and real property 
the grantee owns or will own, must include:
    (1) The grantee's correct legal name and current mailing address;
    (2) A legal description of the real property;
    (3) Grant award number, amount and date of initial facilities 
funding award or initial use of base grant funds for ongoing purchase or 
mortgage payments;
    (4) A statement that the notice of federal interest includes funds 
awarded in grant award(s) and any Head Start funds subsequently used to 
purchase, construct or to make major renovations to the real property;
    (5) A statement that the facility and real property will only be 
used for purposes consistent with the Act and applicable Head Start 
regulations;
    (6) A statement that the facility and real property will not be 
mortgaged or used as collateral, sold or otherwise transferred to 
another party, without the responsible HHS official's written 
permission;
    (7) A statement that the federal interest cannot be subordinated, 
diminished, nullified or released through encumbrance of the property, 
transfer of the property to another party or any other action the 
grantee takes without the responsible HHS official's written permission;
    (8) A statement that confirms that the agency's governing body 
received a copy of the notice of federal interest prior to filing and 
the date the governing body was provided with a copy; and,
    (9) The name, title, and signature of the person who drafted the 
notice.
    (b) Facility leased by a grantee. (1) A notice of federal interest 
for a leased facility, excluding a modular unit, on land the grantee 
does not own, must be recorded in the official real property records for 
the jurisdiction where the facility is located and must include:
    (i) The grantee's correct legal name and current mailing address;
    (ii) A legal description of affected real property;
    (iii) The grant award number, amount and date of initial funding 
award or initial use of base grant funds for major renovation;
    (iv) Acknowledgement that the notice of federal interest includes 
any Head Start funds subsequently used to make major renovations on the 
affected real property;
    (v) A statement the facility and real property will only be used for 
purposes consistent with the Act and applicable Head Start regulations; 
and,
    (vi) A lease or occupancy agreement that includes the required 
information from paragraphs (b)(1)(i) through (v) of this section may be 
recorded in the official real property records for the jurisdiction 
where the facility is located to serve as a notice of federal interest.
    (2) If a grantee cannot file the lease or occupancy agreement 
described in paragraph (b)(1)(vi) of this section in the official real 
property records for the jurisdiction where the facility is located, it 
may file an abstract. The abstract must include the names and

[[Page 126]]

addresses of parties to the lease or occupancy agreement, terms of the 
lease or occupancy agreement, and information described in paragraphs 
(a)(1) through (9) of this section.
    (c) Modular units. A notice of federal interest on a modular unit 
the grantee purchased or renovated must be visible and clearly posted on 
the exterior of the modular and inside the modular and must include:
    (1) The grantee's correct legal name and current mailing address;
    (2) The grant award number, amount and date of initial funding award 
or initial use of base grant funds to purchase or renovate;
    (3) A statement that the notice of federal interest includes any 
Head Start funds subsequently used for major renovations to the modular 
unit;
    (4) A statement that the facility and real property will only be 
used for purposes consistent with the Act and applicable Head Start 
regulations;
    (5) A statement that the modular unit will not be mortgaged or used 
as collateral, sold or otherwise transferred to another party, without 
the responsible HHS official's written permission;
    (6) A statement that the federal interest cannot be subordinated, 
diminished, nullified or released through encumbrance of the property, 
transfer to another party, or any other action the grantee takes without 
the responsible HHS official's written permission;
    (7) A statement that the modular unit cannot be moved to another 
location without the responsible HHS official's written permission;
    (8) A statement that confirms that the agency's governing body has 
received a copy of the filed notice of federal interest and the date the 
governing body was provided with a copy; and,
    (9) The name, title, and signature of the person who completed the 
notice for the grantee agency.



Sec. 1303.48  Grantee limitations on federal interest.

    (a) A grantee cannot mortgage, use as collateral for a credit line 
or for other loan obligations, or, sell or transfer to another party, a 
facility, real property, or a modular unit it has purchased, constructed 
or renovated with Head Start funds, without the responsible HHS 
official's written permission.
    (b) A grantee must have the responsible HHS official's written 
permission before it can use real property, a facility, or a modular 
unit subject to federal interest for a purpose other than that for which 
the grantee's application was approved.



Sec. 1303.49  Protection of federal interest in mortgage agreements.

    (a) Any mortgage agreement or other security instrument that is 
secured by real property or a modular unit constructed or purchased in 
whole or in part with federal funds or subject to renovation with 
federal funds must:
    (1) Specify that the responsible HHS official can intervene in case 
the grantee defaults on, terminates or withdraws from the agreement;
    (2) Designate the responsible HHS official to receive a copy of any 
notice of default given to the grantee under the terms of the agreement 
and include the regional grants management officer's current address;
    (3) Include a clause that requires any action to foreclose the 
mortgage agreement or security agreement be suspended for 60 days after 
the responsible HHS official receives the default notice to allow the 
responsible HHS official reasonable time to respond;
    (4) Include a clause that preserves the notice of federal interest 
and the grantee's obligation for its federal share if the responsible 
HHS official fails to respond to any notice of default provided under 
this section;
    (5) Include a statement that requires the responsible HHS official 
to be paid the federal interest before foreclosure proceeds are paid to 
the lender, unless the official's rights under the notice of federal 
interest have been subordinated by a written agreement in conformance 
with Sec. 1303.51;
    (6) Include a clause that gives the responsible HHS official the 
right to cure any default under the agreement within the designated 
period to cure the default; and,
    (7) Include a clause that gives the responsible HHS official the 
right to assign or transfer the agreement to another interim or 
permanent grantee.

[[Page 127]]

    (b) A grantee must immediately notify the responsible HHS official 
of any default under an agreement described in paragraph (a) of this 
section.



Sec. 1303.50  Third party leases and occupancy arrangements.

    (a) After November 7, 2016, if a grantee receives federal funds to 
purchase, construct or renovate a facility on real property the grantee 
does not own or to purchase or renovate a modular unit on real property 
the grantee does not own, the grantee must have a lease or other 
occupancy agreement of at least 30 years for purchase or construction of 
a facility and at least 15 years for a major renovation or placement of 
a modular unit.
    (b) The lease or occupancy agreement must:
    (1) Provide for the grantee's right of continued use and occupancy 
of the leased or occupied premises during the entire term of the lease;
    (2) Designate the regional grants management officer to receive a 
copy of any notice of default given to the grantee under the terms of 
the agreement and include the regional grants management officer's 
current address;
    (3) Specify that the responsible HHS official has the right to cure 
any default under the lease or occupancy agreement within the designated 
period to cure default; and,
    (4) Specify that the responsible HHS official has the right to 
transfer the lease to another interim or replacement grantee.



Sec. 1303.51  Subordination of the federal interest.

    Only the responsible HHS official can subordinate federal interest 
to the rights of a lender or other third party. Subordination agreements 
must be in writing and the mortgage agreement or security agreement for 
which subordination is requested must comply with Sec. 1303.49. When 
the amount of federal funds already contributed to the facility exceeds 
the amount to be provided by the lender seeking subordination, the 
federal interest may only be subordinated if the grantee can show that 
funding is not available without subordination of the federal interest.



Sec. 1303.52  Insurance, bonding, and maintenance.

    (a) Purpose. If a grantee uses federal funds to purchase or continue 
purchase on a facility, excluding modular units, the grantee must obtain 
a title insurance policy for the purchase price that names the 
responsible HHS official as an additional loss payee.
    (b) Insurance coverage. (1) If a grantee uses federal funds to 
purchase or continue purchase on a facility or modular unit the grantee 
must maintain physical damage or destruction insurance at the full 
replacement value of the facility, for as long as the grantee owns or 
occupies the facility.
    (2) If a facility is located in an area the National Flood Insurance 
Program defines as high risk, the grantee must maintain flood insurance 
for as long as the grantee owns or occupies the facility.
    (3) A grantee must submit to the responsible HHS official, within 10 
days after coverage begins, proof of insurance coverage required under 
paragraphs (a) and (b) of this section.
    (c) Maintenance. A grantee must keep all facilities purchased or 
constructed in whole or in part with Head Start funds in good repair in 
accordance with all applicable federal, state, and local laws, rules and 
regulations, including Head Start requirements, zoning requirements, 
building codes, health and safety regulations and child care licensing 
standards.



Sec. 1303.53  Copies of documents.

    A grantee must submit to the responsible HHS official, within 10 
days after filing or execution, copies of deeds, leases, loan 
instruments, mortgage agreements, notices of federal interest, and other 
legal documents related to the use of Head Start funds for purchase, 
construction, major renovation, or the discharge of any debt secured by 
the facility.



Sec. 1303.54  Record retention.

    A grantee must retain records pertinent to the lease, purchase, 
construction or renovation of a facility funded in whole or in part with 
Head Start funds, for as long as the grantee owns or occupies the 
facility, plus three years.

[[Page 128]]



Sec. 1303.55  Procurement procedures.

    (a) A grantee must comply with all grants management regulations, 
including specific regulations applicable to transactions in excess of 
the current simplified acquisition threshold, cost principles, and its 
own procurement procedures, and must provide, to the maximum extent 
practical, open and full competition.
    (b) A grantee must obtain the responsible HHS official's written 
approval before it uses Head Start funds, in whole or in part, to 
contract construction or renovation services. The grantee must ensure 
these contracts are paid on a lump sum fixed-price basis.
    (c) A grantee must obtain prior written approval from the 
responsible HHS official for contract modifications that would change 
the scope or objective of a project or would materially alter the costs, 
by increasing the amount of grant funds needed to complete the project.
    (d) A grantee must ensure all construction and renovation contracts 
paid, in whole or in part with Head Start funds contain a clause that 
gives the responsible HHS official or his or her designee access to the 
facility, at all reasonable times, during construction and inspection.



Sec. 1303.56  Inspection of work.

    The grantee must submit to the responsible HHS official a final 
facility inspection report by a licensed engineer or architect within 30 
calendar days after the project is completed. The inspection report must 
certify that the facility complies with local building codes, applicable 
child care licensing requirements, is structurally sound and safe for 
use as a Head Start facility, complies with the access requirements of 
the Americans with Disabilities Act, section 504 of the Rehabilitation 
Act, and the Flood Disaster Protection Act of 1973, and complies with 
National Historic Preservation Act of 1966.



                        Subpart F_Transportation



Sec. 1303.70  Purpose.

    (a) Applicability. This rule applies to all agencies, including 
those that provide transportation services, with the exceptions and 
exclusions provided in this section, regardless of whether such 
transportation is provided directly on agency owned or leased vehicles 
or through arrangement with a private or public transportation provider.
    (b) Providing transportation services. (1) If a program does not 
provide transportation services, either for all or a portion of the 
children, it must provide reasonable assistance, such as information 
about public transit availability, to the families of such children to 
arrange transportation to and from its activities, and provide 
information about these transportation options in recruitment 
announcements.
    (2) A program that provides transportation services must make 
reasonable efforts to coordinate transportation resources with other 
human services agencies in its community in order to control costs and 
to improve the quality and the availability of transportation services.
    (3) A program that provides transportation services must ensure all 
accidents involving vehicles that transport children are reported in 
accordance with applicable state requirements.
    (c) Waiver. (1) A program that provides transportation services must 
comply with all provisions in this subpart. A Head Start program may 
request to waive a specific requirement in this part, in writing, to the 
responsible HHS official, as part of an agency's annual application for 
financial assistance or amendment and must submit any required 
documentation the responsible HHS official deems necessary to support 
the waiver. The responsible HHS official is not authorized to waive any 
requirements with regard to children enrolled in an Early Head Start 
program. A program may request a waiver when:
    (i) Adherence to a requirement in this part would create a safety 
hazard in the circumstances faced by the agency; and,
    (ii) For preschool children, compliance with requirements related to 
child restraint systems at Sec. Sec. 1303.71(d) and 1303.72(a)(1) or 
bus monitors at Sec. 1303.72(a)(4) will result in a significant 
disruption to the program and the agency demonstrates that waiving such

[[Page 129]]

requirements is in the best interest of the children involved.
    (2) The responsible HHS official is not authorized to waive any 
requirements of the Federal Motor Vehicle Safety Standards (FMVSS) made 
applicable to any class of vehicle under 49 CFR part 571.



Sec. 1303.71  Vehicles.

    (a) Required use of schools buses or allowable alternative vehicles. 
A program, with the exception of transportation services to children 
served under a home-based option, must ensure all vehicles used or 
purchased with grant funds to provide transportation services to 
enrolled children are school buses or allowable alternate vehicles that 
are equipped for use of height- and weight-appropriate child restraint 
systems, and that have reverse beepers.
    (b) Emergency equipment. A program must ensure each vehicle used in 
providing such services is equipped with an emergency communication 
system clearly labeled and appropriate emergency safety equipment, 
including a seat belt cutter, charged fire extinguisher, and first aid 
kit.
    (c) Auxiliary seating. A program must ensure any auxiliary seating, 
such as temporary or folding jump seats, used in vehicles of any type 
providing such services are built into the vehicle by the manufacturer 
as part of its standard design, are maintained in proper working order, 
and are inspected as part of the annual inspection required under 
paragraph (e)(2)(i) of this section.
    (d) Child restraint systems. A program must ensure each vehicle used 
to transport children receiving such services is equipped for use of 
age-, height- and weight-appropriate child safety restraint systems as 
defined in part 1305 of this chapter.
    (e) Vehicle maintenance. (1) A program must ensure vehicles used to 
provide such services are in safe operating condition at all times.
    (2) The program must:
    (i) At a minimum, conduct an annual thorough safety inspection of 
each vehicle through an inspection program licensed or operated by the 
state;
    (ii) Carry out systematic preventive maintenance on vehicles; and,
    (iii) Ensure each driver implements daily pre-trip vehicle 
inspections.
    (f) New vehicle inspection. A program must ensure bid announcements 
for school buses and allowable alternate vehicles to transport children 
in its program include correct specifications and a clear statement of 
the vehicle's intended use. The program must ensure vehicles are 
examined at delivery to ensure they are equipped in accordance with the 
bid specifications and that the manufacturer's certification of 
compliance with the applicable FMVSS is included with the vehicle.



Sec. 1303.72  Vehicle operation.

    (a) Safety. A program must ensure:
    (1) Each child is seated in a child restraint system appropriate to 
the child's age, height, and weight;
    (2) Baggage and other items transported in the passenger compartment 
are properly stored and secured, and the aisles remain clear and the 
doors and emergency exits remain unobstructed at all times;
    (3) Up-to-date child rosters and lists of the adults each child is 
authorized to be released to, including alternates in case of emergency, 
are maintained and no child is left behind, either at the classroom or 
on the vehicle at the end of the route; and,
    (4) With the exception of transportation services to children served 
under a home-based option, there is at least one bus monitor on board at 
all times, with additional bus monitors provided as necessary.
    (b) Driver qualifications. A program, with the exception of 
transportation services to children served under a home-based option, 
must ensure drivers, at a minimum:
    (1) In states where such licenses are granted, have a valid 
Commercial Driver's License (CDL) for vehicles in the same class as the 
vehicle the driver will operating; and,
    (2) Meet any physical, mental, and other requirements as necessary 
to perform job-related functions with any necessary reasonable 
accommodations.
    (c) Driver application review. In addition to the applicant review 
process prescribed Sec. 1302.90(b) of this chapter, a program, with the 
exception of transportation services to children served

[[Page 130]]

under a home-based option, must ensure the applicant review process for 
drivers includes, at minimum:
    (1) Disclosure by the applicant of all moving traffic violations, 
regardless of penalty;
    (2) A check of the applicant's driving record through the 
appropriate state agency, including a check of the applicant's record 
through the National Driver Register, if available;
    (3) A check that drivers qualify under the applicable driver 
training requirements in the state or tribal jurisdiction; and,
    (4) After a conditional employment offer to the applicant and before 
the applicant begins work as a driver, a medical examination, performed 
by a licensed doctor of medicine or osteopathy, establishing that the 
individual possesses the physical ability to perform any job-related 
functions with any necessary accommodations.
    (d) Driver training. (1) A program must ensure any person employed 
as a driver receives training prior to transporting any enrolled child 
and receives refresher training each year.
    (2) Training must include:
    (i) Classroom instruction and behind-the-wheel instruction 
sufficient to enable the driver to operate the vehicle in a safe and 
efficient manner, to safely run a fixed route, to administer basic first 
aid in case of injury, and to handle emergency situations, including 
vehicle evacuation, operate any special equipment, such as wheelchair 
lifts, assistance devices or special occupant restraints, conduct 
routine maintenance and safety checks of the vehicle, and maintain 
accurate records as necessary; and,
    (ii) Instruction on the topics listed in Sec. 1303.75 related to 
transportation services for children with disabilities.
    (3) A program must ensure the annual evaluation of each driver of a 
vehicle used to provide such services includes an on-board observation 
of road performance.
    (e) Bus monitor training. A program must train each bus monitor 
before the monitor begins work, on child boarding and exiting 
procedures, how to use child restraint systems, completing any required 
paperwork, how to respond to emergencies and emergency evacuation 
procedures, how to use special equipment, child pick-up and release 
procedures, how to conduct and pre- and post-trip vehicle checks. Bus 
monitors are also subject to staff safety training requirements in Sec. 
1302.47(b)(4) of this chapter including Cardio Pulmonary Resuscitation 
(CPR) and first aid.



Sec. 1303.73  Trip routing.

    (a) A program must consider safety of the children it transports 
when it plans fixed routes.
    (b) A program must also ensure:
    (1) The time a child is in transit to and from the program must not 
exceed one hour unless there is no shorter route available or any 
alternative shorter route is either unsafe or impractical;
    (2) Vehicles are not loaded beyond maximum passenger capacity at any 
time;
    (3) Drivers do not back up or make U-turns, except when necessary 
for safety reasons or because of physical barriers;
    (4) Stops are located to minimize traffic disruptions and to afford 
the driver a good field of view in front of and behind the vehicle;
    (5) When possible, stops are located to eliminate the need for 
children to cross the street or highway to board or leave the vehicle;
    (6) Either a bus monitor or another adult escorts children across 
the street to board or leave the vehicle if curbside pick-up or drop off 
is impossible; and,
    (7) Drivers use alternate routes in the case of hazardous conditions 
that could affect the safety of the children who are being transported, 
such as ice or water build up, natural gas line breaks, or emergency 
road closing.



Sec. 1303.74  Safety procedures.

    (a) A program must ensure children who receive transportation 
services are taught safe riding practices, safety procedures for 
boarding and leaving the vehicle and for crossing the street to and from 
the vehicle at stops, recognition of the danger zones around the 
vehicle, and emergency evacuation procedures, including participating in 
an emergency evacuation drill conducted on the vehicle the child will be 
riding.

[[Page 131]]

    (b) A program that provides transportation services must ensure at 
least two bus evacuation drills in addition to the one required under 
paragraph (a) of this section are conducted during the program year.



Sec. 1303.75  Children with disabilities.

    (a) A program must ensure there are school buses or allowable 
alternate vehicles adapted or designed for transportation of children 
with disabilities available as necessary to transport such children 
enrolled in the program. This requirement does not apply to the 
transportation of children receiving home-based services unless school 
buses or allowable alternate vehicles are used to transport the other 
children served under the home-based option by the grantee. Whenever 
possible, children with disabilities must be transported in the same 
vehicles used to transport other children enrolled in the Head Start or 
Early Head Start program.
    (b) A program must ensure special transportation requirements in a 
child's IEP or IFSP are followed, including special pick-up and drop-off 
requirements, seating requirements, equipment needs, any assistance that 
may be required, and any necessary training for bus drivers and 
monitors.



PART 1304_FEDERAL ADMINISTRATIVE PROCEDURES--Table of Contents



  Subpart A_Monitoring, Suspension, Termination, Denial of Refunding, 
                 Reduction in Funding, and Their Appeals

Sec.
1304.1 Purpose.
1304.2 Monitoring.
1304.3 Suspension with notice.
1304.4 Emergency suspension without advance notice.
1304.5 Termination and denial of refunding.
1304.6 Appeal for prospective delegate agencies.
1304.7 Legal fees.

                      Subpart B_Designation Renewal

1304.10 Purpose and scope.
1304.11 Basis for determining whether a Head Start agency will be 
          subject to an open competition.
1304.12 Grantee reporting requirements concerning certain conditions.
1304.13 Requirements to be considered for designation for a five-year 
          period when the existing grantee in a community is not 
          determined to be delivering a high-quality and comprehensive 
          Head Start program and is not automatically renewed.
1304.14 Tribal government consultation under the Designation Renewal 
          System for when an Indian Head Start grant is being considered 
          for competition.
1304.15 Designation request, review and notification process.
1304.16 Use of CLASS: Pre-K instrument in the Designation Renewal 
          System.

           Subpart C_Selection of Grantees Through Competition

1304.20 Selection among applicants.

   Subpart D_Replacement of American Indian and Alaska Native Grantees

1304.30 Procedure for identification of alternative agency.
1304.31 Requirements of alternative agency.
1304.32 Alternative agency--prohibition.

                  Subpart E_Head Start Fellows Program

1304.40 Purpose.
1304.41 Fellows Program.

    Authority: 42 U.S.C. 9801 et seq.

    Source: 81 FR 61412, Sept. 6, 2016, unless otherwise noted.



  Subpart A_Monitoring, Suspension, Termination, Denial of Refunding, 
                 Reduction in Funding, and Their Appeals



Sec. 1304.1  Purpose.

    (a) Section 641A(c) of the Act requires the Secretary to monitor 
whether a grantee meets program governance, program operations, and 
financial and administrative standards described in this regulation and 
to identify areas for improvements and areas of strength as part of the 
grantee's ongoing self-assessment process. This subpart focuses on the 
monitoring process. It discusses areas of noncompliance, deficiencies, 
and corrective action through quality improvement plans.
    (b) Section 646(a) of the Act requires the Secretary to prescribe 
procedures for notice and appeal for certain adverse actions. This 
subpart establishes

[[Page 132]]

rules and procedures to suspend financial assistance to a grantee, deny 
a grantee's application for refunding, terminate, or reduce a grantee's 
assistance under the Act when the grantee improperly uses federal funds 
or fails to comply with applicable laws, regulations, policies, 
instructions, assurances, terms and conditions or, if the grantee loses 
its legal status or financial viability. This subpart does not apply to 
reductions to a grantee's financial assistance based on chronic under-
enrollment procedures at section 641A(h) of the Act or to matters 
described in subpart B. This subpart does not apply to any 
administrative action based upon any violation, or alleged violation, of 
title VI of the Civil Rights Act of 1964. Except as otherwise provided 
for in this subpart, the appeals and processes in this subpart will be 
governed by the Departmental Appeals Board regulations at 45 CFR part 
16.



Sec. 1304.2  Monitoring.

    (a) Areas of noncompliance. If a responsible HHS official determines 
through monitoring, pursuant to section 641(A)(c)(1) and (2) of the Act, 
that a grantee fails to comply with any of the standards described in 
parts 1301, 1302, and 1303 of this chapter, the official will notify the 
grantee promptly in writing, identify the area of noncompliance, and 
specify when the grantee must correct the area of noncompliance.
    (b) Deficiencies. If the Secretary determines that a grantee meets 
one of the criteria for a deficiency, as defined in section 637(2)(C) of 
the Act, the Secretary shall inform the grantee of the deficiency. The 
grantee must correct the deficiency pursuant to section 641A(e)(1)(B) of 
the Act, as the responsible HHS official determines.
    (c) Quality improvement plans. If the responsible HHS official does 
not require the grantee to correct a deficiency immediately as 
prescribed under section 641A(e)(1)(B)(i) of the Act, the grantee must 
submit to the official, for approval, a quality improvement plan that 
adheres to section 641A(e)(2)(A) of the Act.



Sec. 1304.3  Suspension with notice.

    (a) Grounds to suspend financial assistance with notice. If a 
grantee breaches or threatens to breach any requirement stated in 
Sec. Sec. 1304.3 through 1304.5, the responsible HHS official may 
suspend the grantee's financial assistance, in whole or in part, after 
it has given the grantee notice and an opportunity to show cause why 
assistance should not be suspended.
    (b) Notice requirements. (1) The responsible HHS official must 
notify the grantee in writing that ACF intends to suspend financial 
assistance, in whole or in part. The notice must:
    (i) Specify grounds for the suspension;
    (ii) Include the date suspension will become effective;
    (iii) Inform the grantee that it has the opportunity to submit to 
the responsible HHS official, at least seven days before suspension 
becomes effective, any written material it would like the official to 
consider, and to inform the grantee that it may request, in writing, no 
later than seven days after the suspension notice was mailed, to have an 
informal meeting with the responsible HHS official;
    (iv) Invite the grantee to voluntarily correct the deficiency; and,
    (v) Include a copy of this subpart.
    (2) The responsible HHS official must promptly transmit the 
suspension notice to the grantee. The notice becomes effective when the 
grantee receives the notice, when the grantee refuses delivery, or when 
the suspension notice is returned to sender unclaimed.
    (3) The responsible HHS official must send a copy of the suspension 
notice to any delegate agency whose actions or whose failures to act 
substantially caused or contributed to the proposed suspension. The 
responsible HHS official will inform the delegate agency that it is 
entitled to submit written material to oppose the suspension and to 
participate in the informal meeting, if one is held. In addition, the 
responsible HHS official may give notice to the grantee's other delegate 
agencies.
    (4) After the grantee receives the suspension notice, it has three 
days to send a copy of the notice to delegate agencies that would be 
financially affected by a suspension.

[[Page 133]]

    (c) Opportunity to show cause. The grantee may submit to the 
responsible HHS official any written material to show why financial 
assistance should not be suspended. The grantee may also request, in 
writing, to have an informal meeting with the responsible HHS official. 
If the grantee requests an informal meeting, the responsible HHS 
official must schedule the meeting within seven days after the grantee 
receives the suspension notice.
    (d) Extensions. If the responsible HHS official extends the time or 
the date by which a grantee has to make requests or to submit material, 
it must notify the grantee in writing.
    (e) Decision. (1) The responsible HHS official will consider any 
written material presented before or during the informal meeting, as 
well as any proof the grantee has adequately corrected what led to 
suspension, and will render a decision within five days after the 
informal meeting. If no informal meeting is held, the responsible HHS 
official will render a decision within five days after it receives 
written material from all concerned parties.
    (2) If the responsible HHS official finds the grantee failed to show 
cause why ACF should not suspend financial assistance, the official may 
suspend financial assistance, in whole or in part, and under terms and 
conditions as he or she deems appropriate.
    (3) A suspension must not exceed 30 days, unless the conditions 
under section 646(a)(5)(B) are applicable or the grantee requests the 
suspension continue for an additional period of time and the responsible 
HHS official agrees.
    (4) The responsible HHS official may appoint an agency to serve as 
an interim grantee to operate the program until the grantee's suspension 
is lifted, or as otherwise provided under section 646(a)(5)(B) of the 
Act.
    (f) Obligations incurred during suspension. New obligations the 
grantee incurs while under suspension are not allowed unless the 
responsible HHS official expressly authorizes them in the suspension 
notice or in an amendment to the suspension notice. Necessary and 
otherwise allowable costs which the grantee could not reasonably avoid 
during the suspension period will be allowed if they result from 
obligations the grantee properly incurred before suspension and not in 
anticipation of suspension or termination. The responsible HHS official 
may allow third-party in-kind contributions applicable to the suspension 
period to satisfy cost sharing or matching requirements.
    (g) Modify or rescind suspension. The responsible HHS official may 
modify or rescind suspension at any time, if the grantee can 
satisfactorily show that it has adequately corrected what led to 
suspension and that it will not repeat such actions or inactions. 
Nothing in this section precludes the HHS official from imposing 
suspension again for additional 30 day periods if the cause of the 
suspension has not been corrected.



Sec. 1304.4  Emergency suspension without advance notice.

    (a) Grounds to suspend financial assistance without advance notice. 
The responsible HHS official may suspend financial assistance, in whole 
or in part, without prior notice and an opportunity to show cause if 
there is an emergency situation, such as a serious risk for substantial 
injury to property or loss of project funds, a federal, state, or local 
criminal statute violation, or harm to staff or participants' health and 
safety.
    (b) Emergency suspension notification requirements. (1) The 
emergency suspension notification must:
    (i) Specify the grounds for the suspension;
    (ii) Include terms and conditions of any full or partial suspension;
    (iii) Inform that grantee it cannot make or incur any new 
expenditures or obligations under suspended portion of the program; and,
    (iv) Advise that within five days after the emergency suspension 
becomes effective, the grantee may request, in writing, an informal 
meeting with the responsible HHS official to show why the basis for the 
suspension was not valid and should be rescinded and that the grantee 
has corrected any deficiencies.
    (2) The responsible HHS official must promptly transmit the 
emergency suspension notification to the grantee that shows the date of 
receipt. The

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emergency suspension becomes effective upon delivery of the notification 
or upon the date the grantee refuses delivery, or upon return of the 
notification unclaimed.
    (3) Within two workdays after the grantee receives the emergency 
suspension notification, the grantee must send a copy of the notice to 
delegate agencies affected by the suspension.
    (4) The responsible HHS official must inform affected delegate 
agencies that they have the right to participate in the informal 
meeting.
    (c) Opportunity to show cause. If the grantee requests an informal 
meeting, the responsible HHS official must schedule a meeting within 
five workdays after it receives the grantee's request. The suspension 
will continue until the grantee has been afforded such opportunity and 
until the responsible HHS official renders a decision. Notwithstanding 
provisions in this section, the responsible HHS official may proceed to 
deny refunding or to initiate termination proceedings at any time even 
though the grantee's financial assistance has been suspended in whole or 
in part.
    (d) Decision. (1) The responsible HHS official will consider any 
written material presented before or during the informal meeting, as 
well as any proof the grantee has adequately corrected what led to 
suspension, and render a decision within five work days after the 
informal meeting.
    (2) If the responsible HHS official finds the grantee failed to show 
cause why suspension should be rescinded, the responsible HHS official 
may continue the suspension, in whole or in part, and under the terms 
and conditions specified in the emergency suspension notification.
    (3) A suspension must not exceed 30 days, unless the conditions 
under section 646(a)(5)(B) are applicable or the grantee requests the 
suspension to continue for an additional period of time and the 
responsible HHS official agrees.
    (4) The responsible HHS official may appoint an agency to serve as 
an interim grantee to operate the program until either the grantee's 
emergency suspension is lifted or a new grantee is selected.
    (e) Obligations incurred during suspension. Any new obligations the 
grantee incurs during the suspension period will not be allowed unless 
the responsible HHS official expressly authorizes them in the suspension 
notice or in an amendment to the suspension notice. Necessary and 
otherwise allowable costs which the grantee could not reasonably avoid 
during the suspension period will be allowed if those costs result from 
obligations properly incurred before suspension and not in anticipation 
of suspension, denial of refunding or termination. The responsible HHS 
official may allow third-party in-kind contributions applicable to the 
suspension period to satisfy cost sharing or matching requirements.
    (f) Modify or rescind suspension. The responsible HHS official may 
modify or rescind suspension at any time, if the grantee can 
satisfactorily show that is has adequately corrected what led to the 
suspension and that it will not repeat such actions or inactions. 
Nothing in this section precludes the HHS official from imposing 
suspension again for additional 30 day periods if the cause of the 
suspension has not been corrected.



Sec. 1304.5  Termination and denial of refunding.

    (a) Grounds to terminate financial assistance or deny a grantee's 
application for refunding. (1) A responsible HHS official may terminate 
financial assistance in whole or in part to a grantee or deny a 
grantee's application for refunding.
    (2) The responsible HHS official may terminate financial assistance 
in whole or in part, or deny refunding to a grantee for any one or for 
all of the following reasons:
    (i) The grantee is no longer financially viable;
    (ii) The grantee has lost the requisite legal status or permits;
    (iii) The grantee has failed to timely correct one or more 
deficiencies as defined in the Act;
    (iv) The grantee has failed to comply with eligibility requirements;
    (v) The grantee has failed to comply with the Head Start grants 
administration or fiscal requirements set forth in 45 CFR part 1303;

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    (vi) The grantee has failed to comply with requirements in the Act;
    (vii) The grantee is debarred from receiving federal grants or 
contracts; or
    (viii) The grantee has failed to abide by any other terms and 
conditions of its award of financial assistance, or any other applicable 
laws, regulations, or other applicable federal or state requirements or 
policies.
    (b) Notice requirements. (1) The responsible HHS official will 
notify the grantee and such notice will:
    (i) Include the legal basis for termination or adverse action as 
described in paragraph (a) of this section;
    (ii) Include factual findings on which the action is based or 
reference specific findings in another document that form the basis for 
termination or denial of refunding;
    (iii) Cite to any statutory provisions, regulations, or policy 
issuances on which ACF relies for its determination;
    (iv) Inform the grantee that it may appeal the denial or termination 
within 30 days to the Departmental Appeals Board, that the appeal will 
be governed by 45 CFR part 16, except as otherwise provided in the Head 
Start appeals regulations, that a copy of the appeal must sent to the 
responsible HHS official, and that it has the right to request and 
receive a hearing, as mandated under section 646 of the Act;
    (v) Inform the grantee that only its board of directors, or an 
official acting on the board's behalf can appeal the decision;
    (vi) Name the delegate agency, if the actions of that delegate are 
the basis, in whole or in part, for the proposed action; and,
    (vii) Inform the grantee that the appeal must meet requirements in 
paragraph (c) of this section; and, that if the responsible HHS official 
fails to meet requirements in this paragraph, the pending action may be 
dismissed without prejudice or remanded to reissue it with corrections.
    (2) The responsible HHS official must provide the grantee as much 
notice as possible, but must notify the grantee no later than 30 days 
after ACF receives the annual application for refunding, that it has the 
opportunity for a full and fair hearing on whether refunding should be 
denied.
    (c) Grantee's appeal. (1) The grantee must adhere to procedures and 
requirements for appeals in 45 CFR part 16, file the appeal with the 
Departmental Appeals Board, and serve a copy of the appeal on the 
responsible HHS official who issued the termination or denial of 
refunding notice. The grantees must also serve a copy of its appeal on 
any affected delegate.
    (2) Unless funding has been suspended, funding will continue while a 
grantee appeals a termination decision, unless the responsible HHS 
official renders an adverse decision, or unless the current budget 
period is expired. If the responsible HHS official has not rendered a 
decision by the end of the current budget period, the official will 
award the grantee interim funding until a decision is made or the 
project period ends.
    (d) Funding during suspension. If a grantee's funding is suspended, 
the grantee will not receive funding during the termination proceedings, 
or at any other time, unless the action is rescinded or the grantee's 
appeal is successful.
    (e) Interim and replacement grantees. The responsible HHS official 
may appoint an interim or replacement grantee as soon as a termination 
action is affirmed by the Departmental Appeals Board.
    (f) Opportunity to show cause. (1) If the Departmental Appeals Board 
sets a hearing for a proposed termination or denial of refunding action, 
the grantee has five workdays to send a copy of the notice it receives 
from the Departmental Appeals Board, to all delegate agencies that would 
be financially affected by termination and to each delegate agency 
identified in the notice.
    (2) The grantee must send to the Departmental Appeals Board and to 
the responsible HHS official a list of the delegate agencies it notified 
and the dates when it notified them.
    (3) If the responsible HHS official initiated proceedings because of 
a delegate agency's activities, the official must inform the delegate 
agency that it may participate in the hearing. If the delegate agency 
chooses to participate in the hearing, it must notify the responsible 
HHS official in writing within 30 days of the grantee's appeal.

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If any other delegate agency, person, agency or organization wishes to 
participate in the hearing, it may request permission to do so from the 
Departmental Appeals Board.
    (4) If the grantee fails to appear at the hearing, without good 
cause, the grantee will be deemed to have waived its right to a hearing 
and consented to have the Departmental Appeals Board make a decision 
based on the parties' written information and argument.
    (5) A grantee may waive the hearing and submit written information 
and argument for the record, within a reasonable period of time to be 
fixed by the Departmental Appeals Board.
    (6) The responsible HHS official may attempt, either personally or 
through a representative, to resolve the issues in dispute by informal 
means prior to the hearing.
    (g) Decision. The Departmental Appeals Board's decision and any 
measure the responsible HHS official takes after the decision is fully 
binding upon the grantee and its delegate agencies, whether or not they 
actually participated in the hearing.



Sec. 1304.6  Appeal for prospective delegate agencies.

    (a) Appeal. If a grantee denies, or fails to act on, a prospective 
delegate agency's funding application, the prospective delegate may 
appeal the grantee's decision or inaction.
    (b) Process for prospective delegates. To appeal, a prospective 
delegate must:
    (1) Submits the appeal, including a copy of the funding application, 
to the responsible HHS official within 30 days after it receives the 
grantee's decision; or within 30 days after the grantee has had 120 days 
to review but has not notified the applicant of a decision; and,
    (2) Provide the grantee with a copy of the appeal at the same time 
the appeal is filed with the responsible HHS official.
    (c) Process for grantees. When an appeal is filed with the 
responsible HHS official, the grantee must respond to the appeal and 
submit a copy of its response to the responsible HHS official and to the 
prospective delegate agency within 30 work days.
    (d) Decision. (1) The responsible HHS official will sustain the 
grantee's decision, if the official determines the grantee did not act 
arbitrarily, capriciously, or otherwise contrary to law, regulation, or 
other applicable requirements.
    (2) The responsible HHS official will render a written decision to 
each party within a reasonable timeframe. The official's decision is 
final and not subject to further appeal.
    (3) If the responsible HHS official finds the grantee did act 
arbitrarily, capriciously, or otherwise contrary to law, regulation, or 
other applicable requirements, the grantee will be directed to 
reevaluate their applications.



Sec. 1304.7  Legal fees.

    (a) An agency is not authorized to charge to its grant legal fees or 
other costs incurred to appeal terminations, reductions of funding, or 
denials of applications of refunding decisions.
    (b) If a program prevails in a termination, reduction, or denial of 
refunding decision, the responsible HHS official may reimburse the 
agency for reasonable and customary legal fees, incurred during the 
appeal, if:
    (1) The Departmental Appeals Board overturns the responsible HHS 
official's decision;
    (2) The agency can prove it incurred fees during the appeal; and,
    (3) The agency can prove the fees incurred are reasonable and 
customary.



                      Subpart B_Designation Renewal



Sec. 1304.10  Purpose and scope.

    The purpose of this subpart is to set forth policies and procedures 
for the designation renewal of Head Start and Early Head Start programs. 
It is intended that these programs be administered effectively and 
responsibly; that applicants to administer programs receive fair and 
equitable consideration; and that the legal rights of current Head Start 
and Early Head Start grantees be fully protected. The Designation 
Renewal System is established in this part to determine whether Head 
Start and Early Head Start agencies deliver high-quality services to 
meet the educational, health, nutritional, and social needs of the 
children and families they serve; meet the program and financial 
requirements and

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standards described in section 641A(a)(1) of the Head Start Act; and 
qualify to be designated for funding for five years without competing 
for such funding as required under section 641(c) of the Head Start Act 
with respect to Head Start agencies and pursuant to section 645A(b)(12) 
and (d) with respect to Early Head Start agencies. A competition to 
select a new Head Start or Early Head Start agency to replace a Head 
Start or Early Head Start agency that has been terminated voluntarily or 
involuntarily is not part of the Designation Renewal System established 
in this Part, and is subject instead to the requirements of Sec. 
1304.20.



Sec. 1304.11  Basis for determining whether a Head Start agency will
be subject to an open competition.

    A Head Start or Early Head Start agency shall be required to compete 
for its next five years of funding whenever the responsible HHS official 
determines that one or more of the following seven conditions existed 
during the relevant time period covered by the responsible HHS 
official's review under Sec. 1304.15:
    (a) An agency has been determined by the responsible HHS official to 
have one or more deficiencies on a single review conducted under section 
641A(c)(1)(A), (C), or (D) of the Act in the relevant time period 
covered by the responsible HHS official's review under Sec. 1304.15.
    (b) An agency has been determined by the responsible HHS official 
based on a review conducted under section 641A(c)(1)(A), (C), or (D) of 
the Act during the relevant time period covered by the responsible HHS 
official's review under Sec. 1304.15 not to have:
    (1) After December 9, 2011, established program goals for improving 
the school readiness of children participating in its program in 
accordance with the requirements of section 641A(g)(2) of the Act and 
demonstrated that such goals:
    (i) Appropriately reflect the ages of children, birth to five, 
participating in the program;
    (ii) Align with the Birth to Five Head Start Child Outcomes 
Framework, state early learning guidelines, and the requirements and 
expectations of the schools, to the extent that they apply to the ages 
of children, birth to five, participating in the program and at a 
minimum address the domains of language and literacy development, 
cognition and general knowledge, approaches toward learning, physical 
well-being and motor development, and social and emotional development;
    (iii) Were established in consultation with the parents of children 
participating in the program.
    (2) After December 9, 2011, taken steps to achieve the school 
readiness goals described under paragraph (b)(1) of this section 
demonstrated by:
    (i) Aggregating and analyzing aggregate child-level assessment data 
at least three times per year (except for programs operating less than 
90 days, which will be required to do so at least twice within their 
operating program period) and using that data in combination with other 
program data to determine grantees' progress toward meeting its goals, 
to inform parents and the community of results, and to direct continuous 
improvement related to curriculum, instruction, professional 
development, program design and other program decisions; and,
    (ii) Analyzing individual ongoing, child-level assessment data for 
all children birth to age five participating in the program and using 
that data in combination with input from parents and families to 
determine each child's status and progress with regard to, at a minimum, 
language and literacy development, cognition and general knowledge, 
approaches toward learning, physical well-being and motor development, 
and social and emotional development and to individualize the 
experiences, instructional strategies, and services to best support each 
child.
    (c) An agency has been determined during the relevant time period 
covered by the responsible HHS official's review under Sec. 1304.15:
    (1) After December 9, 2011, to have an average score across all 
classrooms observed below the following minimum thresholds on any of the 
three CLASS: Pre-K domains from the most recent CLASS: Pre-K 
observation:
    (i) For the Emotional Support domain the minimum threshold is 4;

[[Page 138]]

    (ii) For the Classroom Organization domain, the minimum threshold is 
3;
    (iii) For the Instructional Support domain, the minimum threshold is 
2;
    (2) After December 9, 2011, to have an average score across all 
classrooms observed that is in the lowest 10 percent on any of the three 
CLASS: Pre-K domains from the most recent CLASS: Pre-K observation among 
those currently being reviewed unless the average score across all 
classrooms observed for that CLASS: Pre-K domain is equal to or above 
the standard of excellence that demonstrates that the classroom 
interactions are above an exceptional level of quality. For all three 
domains, the ``standard of excellence'' is a 6.
    (d) An agency has had a revocation of its license to operate a Head 
Start or Early Head Start center or program by a state or local 
licensing agency during the relevant time period covered by the 
responsible HHS official's review under Sec. 1304.15, and the 
revocation has not been overturned or withdrawn before a competition for 
funding for the next five-year period is announced. A pending challenge 
to the license revocation or restoration of the license after correction 
of the violation shall not affect application of this requirement after 
the competition for funding for the next five-year period has been 
announced.
    (e) An agency has been suspended from the Head Start or Early Head 
Start program by ACF during the relevant time period covered by the 
responsible HHS official's review under Sec. 1304.16 and the suspension 
has not been overturned or withdrawn. If there is a pending appeal and 
the agency did not have an opportunity to show cause as to why the 
suspension should not have been imposed or why the suspension should 
have been lifted if it had already been imposed under this part, the 
agency will not be required to compete based on this condition. If an 
agency has received an opportunity to show cause, the condition will be 
implemented regardless of appeal status.
    (f) An agency has been debarred from receiving federal or state 
funds from any federal or state department or agency or has been 
disqualified from the Child and Adult Care Food Program (CACFP) any time 
during the relevant time period covered by the responsible HHS 
official's review under Sec. 1304.15 but has not yet been terminated or 
denied refunding by ACF. (A debarred agency will only be eligible to 
compete for Head Start funding if it receives a waiver described in 2 
CFR 180.135.)
    (g) An agency has been determined within the twelve months preceding 
the responsible HHS official's review under Sec. 1304.15 to be at risk 
of failing to continue functioning as a going concern. The final 
determination is made by the responsible HHS official based on a review 
of the findings and opinions of an audit conducted in accordance with 
section 647 of the Act; an audit, review or investigation by a state 
agency; a review by the National External Audit Review (NEAR) Center; or 
an audit, investigation or inspection by the Department of Health and 
Human Services Office of Inspector General.



Sec. 1304.12  Grantee reporting requirements concerning certain 
conditions.

    (a) Head Start agencies must report in writing to the responsible 
HHS official within 30 working days of December 9, 2011, if the agency 
has had a revocation of a license to operate a center by a state of 
local licensing entity during the period between June 12, 2009, and 
December 9, 2011.
    (b) Head Start agencies must report in writing to the responsible 
HHS official within 10 working days of occurrence any of the following 
events following December 9, 2011:
    (1) The agency has had a revocation of a license to operate a center 
by a state or local licensing entity.
    (2) The agency has filed for bankruptcy or agreed to a 
reorganization plan as part of a bankruptcy settlement.
    (3) The agency has been debarred from receiving federal or state 
funds from any federal or state department or agency or has been 
disqualified from the Child and Adult Care Food Program (CACFP).
    (4) The agency has received an audit, audit review, investigation or 
inspection report from the agency's auditor,

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a state agency, or the cognizant federal audit agency containing a 
determination that the agency is at risk for ceasing to be a going 
concern.



Sec. 1304.13  Requirements to be considered for designation for a
five-year period when the existing grantee in a community is not 
determined to be delivering a high-quality and comprehensive Head
Start program and is not automatically renewed.

    In order to compete for the opportunity to be awarded a five-year 
grant, an agency must submit an application to the responsible HHS 
official that demonstrates that it is the most qualified entity to 
deliver a high-quality and comprehensive Head Start or Early Head Start 
program. The application must address the criteria for selection listed 
at section 641(d)(2) of the Act for Head Start. Any agency that has had 
its Head Start or Early Head Start grant terminated for cause in the 
preceding five years is excluded from competing in such competition for 
the next five years. A Head Start or Early Head Start agency that has 
had a denial of refunding, as defined in 45 CFR part 1305, in the 
preceding five years is also excluded from competing.



Sec. 1304.14  Tribal government consultation under the Designation
Renewal System for when an Indian Head Start grant is being considered
for competition.

    (a) In the case of an Indian Head Start or Early Head Start agency 
determined not to be delivering a high-quality and comprehensive Head 
Start or Early Head Start program, the responsible HHS official will 
engage in government-to-government consultation with the appropriate 
tribal government or governments for the purpose of establishing a plan 
to improve the quality of the Head Start program or Early Head Start 
program operated by the Indian Head Start or Indian Early Head Start 
agency.
    (1) The plan will be established and implemented within six months 
after the responsible HHS official's determination.
    (2) Not more than six months after the implementation of that plan, 
the responsible HHS official will reevaluate the performance of the 
Indian Head Start or Early Head Start agency.
    (3) If the Indian Head Start or Early Head Start agency is still not 
delivering a high-quality and comprehensive Head Start or Early Head 
Start program, the responsible HHS official will conduct an open 
competition to select a grantee to provide services for the community 
currently being served by the Indian Head Start or Early Head Start 
agency.
    (b) A non-Indian Head Start or Early Head Start agency will not be 
eligible to receive a grant to carry out an Indian Head Start program, 
unless there is no Indian Head Start or Early Head Start agency 
available for designation to carry out an Indian Head Start or Indian 
Early Head Start program.
    (c) A non-Indian Head Start or Early Head Start agency may receive a 
grant to carry out an Indian Head Start program only until such time as 
an Indian Head Start or Indian Early Head Start agency in such community 
becomes available and is designated pursuant to this part.



Sec. 1304.15  Designation request, review and notification process.

    (a) Grantees must apply to be considered for Designation Renewal.
    (1) For the transition period, each Head Start or Early Head Start 
agency wishing to be considered to have their designation as a Head 
Start or Early Head Start agency renewed for a five year period without 
competition shall request that status from ACF within six months of 
December 9, 2011.
    (2) After the transition period, each Head Start or Early Head Start 
agency wishing to be considered to have their designation as a Head 
Start or Early Head Start agency renewed for another five year period 
without competition shall request that status from ACF at least 12 
months before the end of their five year grant period or by such time as 
required by the Secretary.
    (b) ACF will review the relevant data to determine if one or more of 
the conditions under Sec. 1304.11 were met by the Head Start and Early 
Head Start agency's program:
    (1) During the first year of the transition period, ACF shall review 
the data on each Head Start and Early Head

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Start agency to determine if any of the conditions under Sec. 
1304.11(a) or (d) through (g) were met by the agency's program since 
June 12, 2009.
    (2) During the remainder of the transition period, ACF shall review 
the data on each Head Start and Early Head Start agency still under 
grants with indefinite project periods and for whom ACF has relevant 
data on all of the conditions in Sec. 1304.11(a) through (g) to 
determine if any of the conditions under Sec. 1304.11(a) or (d) through 
(g) were met by the agency's program since June 12, 2009, or if the 
conditions under Sec. 1304.11(b) or (c) existed in the agency's program 
since December 9, 2011.
    (3) Following the transition period, ACF shall review the data on 
each Head Start and Early Head Start agency in the fourth year of the 
grant to determine if any of the conditions under Sec. 1304.11 existed 
in the agency's program during the period of that grant.
    (c) ACF will give notice to grantees on Designation Renewal System 
status, except as provided in Sec. 1304.14:
    (1) During the first year of the transition period, ACF shall give 
written notice to all grantees meeting any of the conditions under Sec. 
1304.11(a) or (d) through (g) since June 12, 2009, by certified mail 
return receipt requested or other system that establishes the date of 
receipt of the notice by the addressee, stating that the Head Start or 
Early Head Start agency will be required to compete for funding for an 
additional five-year period, identifying the conditions ACF found, and 
summarizing the basis for the finding. All grantees that do not meet any 
of the conditions under Sec. 1304.11(a) or (d) through (g) will remain 
under indefinite project periods until the time period described under 
paragraph (b)(2) of this section.
    (2) During the remainder of the transition period, ACF shall give 
written notice to all grantees still under grants with indefinite 
project periods and on the conditions in Sec. 1304.11(a) through (g) by 
certified mail return receipt requested or other system that establishes 
the date of receipt of the notice by the addressee stating either:
    (i) The Head Start or Early Head Start agency will be required to 
compete for funding for an additional five-year period because ACF finds 
that one or more conditions under Sec. 1304.11(a) through (g) has been 
met during the relevant time period described in paragraph (b) of this 
section, identifying the conditions ACF found, and summarizing the basis 
for the finding; or
    (ii) That such agency has been determined on a preliminary basis to 
be eligible for renewed funding for five years without competition 
because ACF finds that none of the conditions under Sec. 1304.11 have 
been met during the relevant time period described in paragraph (b) of 
this section. If prior to the award of that grant, ACF determines that 
the grantee has met one of the conditions under Sec. 1304.11 during the 
relevant time period described in paragraph (b) of this section, this 
determination will change and the grantee will receive notice under 
paragraph (c)(2)(i) of this section that it will be required to compete 
for funding for an additional five-year period.
    (3) Following the transition period, ACF shall give written notice 
to all grantees at least 12 months before the expiration date of a Head 
Start or Early Head Start agency's then current grant by certified mail 
return receipt requested or other system that establishes the date of 
receipt of the notice by the addressee, stating:
    (i) The Head Start or Early Head Start agency will be required to 
compete for funding for an additional five-year period because ACF finds 
that one or more conditions under Sec. 1304.11 were met by the agency's 
program during the relevant time period described in paragraph (b) of 
this section, identifying the conditions ACF found, and summarizing the 
basis for the finding; or,
    (ii) That such agency has been determined on a preliminary basis to 
be eligible for renewed funding for five years without competition 
because ACF finds that none of the conditions under Sec. 1304.11 have 
been met during the relevant time period described in paragraph (b) of 
this section. If prior to the award of that grant, ACF determines that 
the grantee has met one of the conditions under Sec. 1304.11 during the

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relevant time period described in paragraph (b) of this section, this 
determination will change and the grantee will receive notice under 
paragraph (c)(3)(i) of this section that it will be required to compete 
for funding for an additional five-year period.



Sec. 1304.16  Use of CLASS: Pre-K instrument in the Designation
Renewal System.

    Except when all children are served in a single classroom, ACF will 
conduct observations of multiple classes operated by the grantee based 
on a random sample of all classes and rate the conduct of the classes 
observed using the CLASS: Pre-K instrument. When the grantee serves 
children in its program in a single class, that class will be observed 
and rated using the CLASS: Pre-K instrument. The domain scores for that 
class will be the domain scores for the grantee for that observation. 
After the observations are completed, ACF will report to the grantee the 
scores of the classes observed during the CLASS: Pre-K observations in 
each of the domains covered by the CLASS: Pre-K instrument. ACF will 
average CLASS: Pre-K instrument scores in each domain for the classes 
operated by the agency that ACF observed to determine the agency's score 
in each domain.



           Subpart C_Selection of Grantees Through Competition



Sec. 1304.20  Selection among applicants.

    (a) In selecting an agency to be designated to provide Head Start, 
Early Head Start, Migrant or Seasonal Head Start or tribal Head Start or 
Early Head Start services, the responsible HHS official will consider 
the applicable criteria at Section 641(d) of the Head Start Act and any 
other criteria outlined in the funding opportunity announcement.
    (b) In competitions to replace or potentially replace a grantee the 
responsible HHS official will also consider the extent to which the 
applicant supports continuity for participating children, the community 
and the continued employment of effective, well qualified personnel.
    (c) In competitions to replace or potentially replace a current 
grantee, the responsible HHS official will give priority to applicants 
that have demonstrated capacity in providing effective, comprehensive, 
and well-coordinated early childhood education and development services 
and programs to children and their families.



   Subpart D_Replacement of American Indian and Alaska Native Grantees



Sec. 1304.30  Procedure for indentification of alternative agency.

    (a) An Indian tribe whose Head Start grant has been terminated, 
relinquished, designated for competition or which has been denied 
refunding as a Head Start agency, may identify an alternate agency and 
request the responsible HHS official to designate such agency as an 
alternative agency to provide Head Start services to the tribe if:
    (1) The tribe was the only agency that was receiving federal 
financial assistance to provide Head Start services to members of the 
tribe; and,
    (2) The tribe would be otherwise precluded from providing such 
services to its members because of the termination or denial of 
refunding.
    (b)(1) The responsible HHS official, when notifying a tribal grantee 
of the intent to terminate financial assistance or deny its application 
for refunding, or its designation for competition must notify the 
grantee that it may identify an agency and request that the agency serve 
as the alternative agency in the event that the grant is terminated or 
refunding denied, or the grant is not renewed without competition.
    (2) The tribe must identify the alternate agency to the responsible 
HHS official in writing.
    (3) The responsible HHS official will notify the tribe, in writing, 
whether the alternative agency proposed by the tribe is found to be 
eligible for Head Start funding and capable of operating a Head Start 
program. If the alternative agency identified by the tribe is not an 
eligible agency capable of operating a Head Start program, the tribe 
will have 15 days from the date of the sending of the notification to 
that effect from the responsible HHS official

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to identify another agency and request that the agency be designated. 
The responsible HHS official will notify the tribe in writing whether 
the second proposed alternate agency is found to be an eligible agency 
capable of operating the Head Start program.
    (4) If the tribe does not identify an eligible, suitable alternative 
agency, a grantee will be designated under these regulations.
    (c) If the tribe appeals a termination of financial assistance or a 
denial of refunding, it will, consistent with the terms of Sec. 1304.5, 
continue to be funded pending resolution of the appeal. However, the 
responsible HHS official and the grantee will proceed with the steps 
outlined in this regulation during the appeal process.
    (d) If the tribe does not identify an agency and request that the 
agency be appointed as the alternative agency, the responsible HHS 
official will seek a permanent replacement grantee under these 
regulations.



Sec. 1304.31  Requirements of alternative agency.

    The agency identified by the Indian tribe must establish that it 
meets all requirements established by the Head Start Act and these 
requirements for designation as a Head Start grantee and that it is 
capable of conducting a Head Start program. The responsible HHS 
official, in deciding whether to designate the proposed agency, will 
analyze the capacity and experience of the agency according to the 
criteria found in section 641(d) of the Head Start Act and Sec. 
1304.20.



Sec. 1304.32  Alternative agency--prohibition.

    (a) No agency will be designated as the alternative agency pursuant 
to this subpart if the agency includes an employee who:
    (1) Served on the administrative or program staff of the Indian 
tribal grantee described under section 646(e)(1)(A) of the Act; and
    (2) Was responsible for a deficiency that:
    (i) Relates to the performance standards or financial management 
standards described in section 641A(a)(1) of the Act; and,
    (ii) Was the basis for the termination of assistance under section 
646(e)(1)(A) of the Act or denial of refunding described in Sec. 
1304.4.
    (b) The responsible HHS official shall determine whether an employee 
was responsible for a deficiency within the meaning and context of this 
section.



                  Subpart E_Head Start Fellows Program



Sec. 1304.40  Purpose.

    As provided in section 648A(d) of the Act, the Head Start Fellows 
Program is designed to enhance the ability of Head Start Fellows to make 
significant contributions to Head Start and to other child development 
and family services programs.



Sec. 1304.41  Fellows Program.

    (a) Selection. An applicant must be working on the date of 
application in a local Head Start program or otherwise working in the 
field of child development and family services. The qualifications of 
the applicants for Head Start Fellowship positions will be competitively 
reviewed.
    (b) Placement. Head Start Fellows may be placed in the Head Start 
national and regional offices; local Head Start agencies and programs; 
institutions of higher education; public or private entities and 
organizations concerned with services to children and families; and 
other appropriate settings.
    (c) Restrictions. A Head Start Fellow who is not an employee of a 
local Head Start agency or program may only be placed in the national or 
regional offices within the Department of Health and Human Services that 
administer Head Start or local Head Start agencies. Head Start Fellows 
shall not be placed in any agency whose primary purpose, or one of whose 
major purposes is to influence federal, state or local legislation.
    (d) Duration. Head Start Fellowships will be for terms of one year, 
and may be renewed for a term of one additional year.
    (e) Status. For the purposes of compensation for injuries under 
chapter 81 of title 5, United States Code, Head Start Fellows shall be 
considered to be

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employees, or otherwise in the service or employment, of the federal 
government. Head Start Fellows assigned to the national or regional 
offices within the Department of Health and Human Services shall be 
considered employees in the Executive Branch of the federal government 
for the purposes of chapter 11 of title 18, United States Code, and for 
the purposes of any administrative standards of conduct applicable to 
the employees of the agency to which they are assigned.



PART 1305_DEFINITIONS--Table of Contents



Sec.
1305.1 Purpose.
1305.2 Terms.

    Authority: 42 U.S.C. 9801 et seq.

    Source: 81 FR 61412, Sept. 6, 2016, unless otherwise noted.



Sec. 1305.1  Purpose.

    The purpose of this part is to define terms for the purposes of this 
subchapter.



Sec. 1305.2  Terms.

    For the purposes of this subchapter, the following definitions 
apply:

    ACF means the Administration for Children and Families in the 
Department of Health and Human Services.
    Act means the Head Start Act, Sec. 635 et seq., Public Law 97-35, 95 
Stat. 499-511 (codified as amended at 42 U.S.C. Section 9801, et seq.).
    Agency means the body that receives the Head Start grant.
    Aggregate child-level assessment data means the data collected by an 
agency on the status and progress of the children it serves that have 
been combined to provide summary information about groups of children 
enrolled in specific classes, centers, home-based or other options, 
groups or settings, or other groups of children such as dual language 
learners, or to provide summary information by specific domains of 
development.
    Allowable alternate vehicle means a vehicle designed for carrying 
eleven or more people, including the driver, that meets all the Federal 
Motor Vehicle Safety Standards applicable to school buses, except 49 CFR 
571.108 and 571.131.
    Budget period means the interval of time, into which a multi-year 
period of assistance (project period) is divided for budgetary and 
funding purposes.
    Case plan is defined as presented in 42 U.S.C. 675(1) which, in 
summary, is a written document that must include a number of specified 
items including, but is not limited to, a plan for safe and proper care 
of the child in foster care placement, health records, and a plan for 
ensuring the educational stability of the child in foster care.
    Child-level assessment data means the data collected by an agency on 
an individual child from one or more valid and reliable assessments of a 
child's status and progress, including but not limited to direct 
assessment, structured observations, checklists, staff or parent report 
measures, and portfolio records or work samples.
    Child records means records that:
    (1) Are directly related to the child;
    (2) Are maintained by the program, or by a party acting for the 
program; and
    (3) Include information recorded in any way, such as print, 
electronic, or digital means, including media, video, image, or audio 
format.
    Child restraint system means any device designed to restrain, seat, 
or position children that meets the current requirements of Federal 
Motor Vehicle Safety Standard No. 213, Child Restraint Systems, 49 CFR 
571.213, for children in the weight category established under the 
regulation, or any device designed to restrain, seat, or position 
children, other than a Type I seat belt as defined at 49 CFR 571.209, 
for children not in the weight category currently established by 49 CFR 
571.213.
    Child with a disability is defined in the same manner as presented 
in the Head Start Act, 42 U.S.C. 9801.
    CLASS: Pre-K means The Classroom Assessment Scoring System (CLASS). 
The CLASS is an observational instrument that assesses classroom quality 
in preschool through third grade classrooms. This tool meets the 
requirements described in 641(c)(1)(D) and 641A(c)(2)(F) of the Head 
Start Act (42 U.S.C. 9836(c)(1)(D) and 9836a(c)(2)(F)). The CLASS 
assesses three domains of classroom experience: Emotional Support, 
Classroom Organization, and Instructional Support.
    (1) Emotional Support measures children's social and emotional 
functioning in the classroom, and includes four dimensions: Positive 
Climate, Negative Climate, Teacher Sensitivity and Regard for Student 
Perspectives. Positive Climate addresses the emotional connection, 
respect, and enjoyment demonstrated between teachers and children and 
among children. Negative Climate addresses the level of expressed 
negativity such as anger, hostility, or aggression exhibited by teachers 
and/or children in the classroom. Teacher Sensitivity addresses 
teachers' awareness of and responsivity to children's academic and 
emotional concerns. Regard for Student Perspectives addresses the degree 
to which teachers' interactions with

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children and classroom activities place an emphasis on children's 
interests, motivations, and points of view.
    (2) Classroom Organization measures a broad array of classroom 
processes related to the organization and management of children's 
behavior, time, and attention in the classroom. It includes three 
dimensions: Behavior Management, Productivity, and Instructional 
Learning Formats. Behavior Management addresses how effectively teachers 
monitor, prevent, and redirect behavior. Productivity addresses how well 
the classroom runs with respect to routines and the degree to which 
teachers organize activities and directions so that maximum time can be 
spent on learning activities. Instructional Learning Formats addresses 
how teachers facilitate activities and provide interesting materials so 
that children are engaged and learning opportunities are maximized.
    (3) Instructional Support measures the ways in which teachers 
implement curriculum to effectively support cognitive and language 
development. It includes three dimensions: Concept Development, Quality 
of Feedback, and Language Modeling. Concept Development addresses how 
teachers use instructional discussions and activities to promote 
children's higher order thinking skills in contrast to a focus on rote 
instruction. Quality of Feedback addresses how teachers extend 
children's learning through their responses to children's ideas, 
comments, and work. Language Modeling addresses the extent to which 
teachers facilitate and encourage children's language.
    (4) Assessments with the CLASS involve observation-based measurement 
of each dimension on a seven point scale. A score ranging from 1 
(minimally characteristic) to 7 (highly characteristic) is given for 
each dimension and represents the extent to which that dimension is 
characteristic of that classroom. Relevant dimension scores are used to 
calculate each domain score.
    Commercial Driver's License (CDL) means a license issued by a state 
or other jurisdiction, in accordance with the standards contained in 49 
CFR part 383, to an individual which authorizes the individual to 
operate a class of commercial motor vehicles.
    Construction means new buildings, and excludes renovations, 
alterations, additions, or work of any kind to existing buildings.
    Continuity of care means Head Start or Early Head Start services 
provided to children in a manner that promotes primary caregiving and 
minimizes the number of transitions in teachers and teacher assistants 
that children experience over the course of the day, week, program year, 
and to the extent possible, during the course of their participation 
from birth to age three in Early Head Start and in Head Start.
    Deficiency is defined in the same manner as presented in the Head 
Start Act, 42 U.S.C. 9801.
    Delegate agency is defined in the same manner as presented in the 
Head Start Act, 42 U.S.C. 9801.
    Development and administrative costs mean costs incurred in 
accordance with an approved Head Start budget which do not directly 
relate to the provision of program component services, including 
services to children with disabilities, as set forth and described in 
the Head Start program performance standards (45 CFR part 1304).
    Disclosure means to permit access to or the release, transfer, or 
other communication of PII contained in child records by any means, 
including oral, written, or electronic means, to any party except the 
party identified as the party that provided or created the record.
    Double session variation means a center-based option that employs a 
single teacher to work with one group of children in the morning and a 
different group of children in the afternoon.
    Dual benefit costs mean costs incurred in accordance with an 
approved Head Start budget which directly relate to both development and 
administrative functions and to the program component services, 
including services to children with disabilities, as set forth and 
described in the Head Start program performance standards (45 CFR part 
1304).
    Dual language learner means a child who is acquiring two or more 
languages at the same time, or a child who is learning a second language 
while continuing to develop their first language. The term ``dual 
language learner'' may encompass or overlap substantially with other 
terms frequently used, such as bilingual, English language learner 
(ELL), Limited English Proficient (LEP), English learner, and children 
who speak a Language Other Than English (LOTE).
    Early Head Start agency means a public or private non-profit or for-
profit entity designated by ACF to operate an Early Head Start program 
to serve pregnant women and children from birth to age three, pursuant 
to Section 645A(e) of the Head Start Act.
    Enrolled (or any variation of) means a child has been accepted and 
attended at least one class for center-based or family child care option 
or at least one home visit for the home-based option.
    Enrollment year means the period of time, not to exceed twelve 
months, during which a Head Start program provides center or home-based 
services to a group of children and their families.
    Facility means a structure, such as a building or modular unit, 
appropriate for use in carrying out a Head Start program and used

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primarily to provide Head Start services, including services to children 
and their families, or for administrative purposes or other activities 
necessary to carry out a Head Start program.
    Family means all persons living in the same household who are 
supported by the child's parent(s)' or guardian(s)' income; and are 
related to the child's parent(s) or guardian(s) by blood, marriage, or 
adoption; or are the child's authorized caregiver or legally responsible 
party.
    Federal interest is a property right which secures the right of the 
federal awarding agency to recover the current fair market value of its 
percentage of participation in the cost of the facility in the event the 
facility is no longer used for Head Start purposes by the grantee or 
upon the disposition of the property. When a grantee uses Head Start 
funds to purchase, construct or renovate a facility, or make mortgage 
payments, it creates a federal interest. The federal interest includes 
any portion of the cost of purchase, construction, or renovation 
contributed by or for the entity, or a related donor organization, to 
satisfy a matching requirement.
    Federal Motor Vehicle Safety Standards (FMVSS) means the National 
Highway and Traffic Safety Administration's standards for motor vehicles 
and motor vehicle equipment (49 CFR part 571) established under section 
30111 of Title 49, United States Code.
    Financial viability means that an organization is able to meet its 
financial obligations, balance funding and expenses and maintain 
sufficient funding to achieve organizational goals and objectives.
    Fixed route means the established routes to be traveled on a regular 
basis by vehicles that transport children to and from Head Start or 
Early Head Start program activities, and which include specifically 
designated stops where children board or exit the vehicle.
    Foster care means 24-hour substitute care for children placed away 
from their parents or guardians and for whom the state agency has 
placement and care responsibility. This includes, but is not limited to, 
placements in foster family homes, foster homes of relatives, group 
homes, emergency shelters, residential facilities, child-care 
institutions, and pre-adoptive homes. A child is in foster care in 
accordance with this definition regardless of whether the foster care 
facility is licensed and payments are made by the state or local agency 
for the care of the child, whether adoption subsidy payments are being 
made prior to the finalization of an adoption, or whether there is 
federal matching of any payments that are made.
    Full-working-day means not less than 10 hours of Head Start or Early 
Head Start services per day.
    Funded enrollment means the number of participants which the Head 
Start grantee is to serve, as indicated on the grant award.
    Going concern means an organization that operates without the threat 
of liquidation for the foreseeable future, a period of at least 12 
months.
    Grantee means the local public or private non-profit agency or for-
profit agency which has been designated as a Head Start agency under 42 
U.S.C. 9836 and which has been granted financial assistance by the 
responsible HHS official to operate a Head Start program.
    Head Start agency means a local public or private non-profit or for-
profit entity designated by ACF to operate a Head Start program to serve 
children age three to compulsory school age, pursuant to section 641(b) 
and (d) of the Head Start Act.
    Head Start Early Learning Outcomes Framework: Ages Birth to Five 
means the Head Start Early Learning Outcomes Framework: Ages Birth to 
Five, which describes the skills, behaviors, and knowledge that programs 
must foster in all children. It includes five central domains: 
Approaches to Learning; Social and Emotional Development; Language and 
Literacy; Cognition; and Perceptual, Motor, and Physical Development. 
These central domains are broken into five domains for infants and 
toddlers and seven domains for preschoolers. Infant and Toddler domains 
are Approaches to Learning; Social and Emotional Development; Language 
and Communication; Cognition; and Perceptual, Motor, and Physical 
Development. Preschool domains are Approaches to Learning; Social and 
Emotional Development; Language and Communication; Literacy; Mathematics 
Development; Scientific Reasoning; and Perceptual, Motor, and Physical 
Development. Domains are divided into sub-domains with goals that 
describe broad skills, behaviors, and concepts that are important for 
school success. Developmental progressions describe the skills, 
behaviors and concepts that children may demonstrate as they progress. 
As described in the Head Start Act, the Framework is central to program 
operations that promote high-quality early learning environments (42 
U.S.C. 9832(21)(G)(iv)(II)(aa), 42 U.S.C. 9835(o), 42 U.S.C. 
9836(d)(2)(C), 42 U.S.C. 9836a(g)(2)(A), 42 U.S.C. 9837(f)(3)(E), 42 
U.S.C. 9837a(a)(3), 42 U.S.C. 9837a(a)(14), 42 U.S.C. 
9837b(a)(2)(B)(iii), 42 U.S.C. 9837b(a)(4)(A)(i), and 42 U.S.C. 
9837b(a)(4)(B)(iii)).
    Homeless children means the same as homeless children and youths in 
Section 725(2) of the McKinney-Vento Homeless Assistance Act at 42 
U.S.C. 11434a(2).
    Home visitor means the staff member in the home-based program option 
assigned to work with parents to provide comprehensive services to 
children and their families through

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home visits and group socialization activities.
    Hours of planned class operations means hours when children are 
scheduled to attend. Professional development, training, orientation, 
teacher planning, data analysis, parent-teacher conferences, home 
visits, classroom sanitation, and transportation do not count toward the 
hours of planned class operations.
    Income means gross cash income and includes earned income, military 
income (including pay and allowances, except those described in Section 
645(a)(3)(B) of the Act), veteran's benefits, Social Security benefits, 
unemployment compensation, and public assistance benefits. Additional 
examples of gross cash income are listed in the definition of ``income'' 
which appears in U.S. Bureau of the Census, Current Population Reports, 
Series P-60-185 (available at https://www2.census.gov/prod2/popscan/p60-
185.pdf).
    Indian Head Start agency means a program operated by an Indian tribe 
(as defined by the Act) or designated by an Indian tribe to operate on 
its behalf.
    Indian tribe is defined in the same manner as presented in the Head 
Start Act, 42 U.S.C. 9801.
    Individualized Education Program is defined in the same manner as 
presented in the Individuals with Disabilities Education Act (20 U.S.C. 
1400 et seq.).
    Individualized Family Service Plan is defined in the same manner as 
presented in the Individuals with Disabilities Education Act (20 U.S.C. 
1400 et seq.).
    Legal status means the existence of an applicant or grantee as a 
public agency or organization under the law of the state in which it is 
located, or existence as a private nonprofit or for-profit agency or 
organization as a legal entity recognized under the law of the state in 
which it is located. Existence as a private non-profit agency or 
organization may be established under applicable state or federal law.
    Local agency responsible for implementing IDEA means the early 
intervention service provider under Part C of IDEA and the local 
educational agency under Part B of IDEA.
    Major renovation means any individual or collection renovation that 
has a cost equal to or exceeding $250,000. It excludes minor renovations 
and repairs except when they are included in a purchase application.
    Migrant family means, for purposes of Head Start eligibility, a 
family with children under the age of compulsory school attendance who 
changed their residence by moving from one geographic location to 
another, either intrastate or interstate, within the preceding two years 
for the purpose of engaging in agricultural work and whose family income 
comes primarily from this activity.
    Migrant or Seasonal Head Start Program means:
    (1) With respect to services for migrant farm workers, a Head Start 
program that serves families who are engaged in agricultural labor and 
who have changed their residence from one geographic location to another 
in the preceding 2-year period; and,
    (2) With respect to services for seasonal farmworkers, a Head Start 
program that serves families who are engaged primarily in seasonal 
agricultural labor and who have not changed their residence to another 
geographic location in the preceding 2-year period.
    Minor renovation means improvements to facilities, which do not meet 
the definition of major renovation.
    Modular unit means a portable prefabricated structure made at 
another location and moved to a site for use by a Head Start grantee to 
carry out a Head Start program, regardless of the manner or extent to 
which the modular unit is attached to underlying real property.
    National Driver Register means the National Highway Traffic Safety 
Administration's automated system for assisting state driver license 
officials in obtaining information regarding the driving records of 
individuals who have been denied licenses for cause; had their licenses 
denied for cause, had their licenses canceled, revoked, or suspended for 
cause, or have been convicted of certain serious driving offenses.
    Parent means a Head Start child's mother or father, other family 
member who is a primary caregiver, foster parent or authorized 
caregiver, guardian or the person with whom the child has been placed 
for purposes of adoption pending a final adoption decree.
    Participant means a pregnant woman or child who is enrolled in and 
receives services from a Head Start, an Early Head Start, a Migrant or 
Seasonal Head Start, or an American Indian and Alaska Native Head Start 
program.
    Personally identifiable information (PII) means any information that 
could identify a specific individual, including but not limited to a 
child's name, name of a child's family member, street address of the 
child, social security number, or other information that is linked or 
linkable to the child.
    Program means a Head Start, Early Head Start, migrant, seasonal, or 
tribal program, funded under the Act and carried out by an agency, or 
delegate agency, to provide ongoing comprehensive child development 
services.
    Program costs mean costs incurred in accordance with an approved 
Head Start budget which directly relate to the provision of program 
component services, including services to children with disabilities, as 
set forth and described in the Head Start Program Performance Standards 
(45 CFR part 1304).
    Purchase means to buy an existing facility, including outright 
purchase, down payment

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or through payments made in satisfaction of a mortgage or other loan 
agreement, whether principal, interest or an allocated portion principal 
and/or interest. The use of grant funds to make a payment under a 
capital lease agreement, as defined in the cost principles, is a 
purchase subject to these provisions. Purchase also refers to an 
approved use of Head Start funds to continue paying the cost of 
purchasing facilities or refinance an existing loan or mortgage 
beginning in 1987.
    Real property means land, including land improvements, buildings, 
structures and all appurtenances thereto, excluding movable machinery 
and equipment.
    Recruitment area means that geographic locality within which a Head 
Start program seeks to enroll Head Start children and families. The 
recruitment area can be the same as the service area or it can be a 
smaller area or areas within the service area.
    Relevant time period means:
    (1) The 12 months preceding the month in which the application is 
submitted; or
    (2) During the calendar year preceding the calendar year in which 
the application is submitted, whichever more accurately reflects the 
needs of the family at the time of application.
    Repair means maintenance that is necessary to keep a Head Start 
facility in working condition. Repairs do not add significant value to 
the property or extend its useful life.
    Responsible HHS official means the official of the Department of 
Health and Human Services who has authority to make grants under the 
Act.
    School readiness goals mean the expectations of children's status 
and progress across domains of language and literacy development, 
cognition and general knowledge, approaches to learning, physical well-
being and motor development, and social and emotional development that 
will improve their readiness for kindergarten.
    School bus means a motor vehicle designed for carrying 11 or more 
persons (including the driver) and which complies with the Federal Motor 
Vehicle Safety Standards applicable to school buses.
    Service area means the geographic area identified in an approved 
grant application within which a grantee may provide Head Start 
services.
    Staff means paid adults who have responsibilities related to 
children and their families who are enrolled in programs.
    State is defined in the same manner as presented in the Head Start 
Act, 42 U.S.C. 9801.
    Termination of a grant or delegate agency agreement means permanent 
withdrawal of the grantee's or delegate agency's authority to obligate 
previously awarded grant funds before that authority would otherwise 
expire. It also means the voluntary relinquishment of that authority by 
the grantee or delegate agency. Termination does not include:
    (1) Withdrawal of funds awarded on the basis of the grantee's or 
delegate agency's underestimate of the unobligated balance in a prior 
period;
    (2) Refusal by the funding agency to extend a grant or award 
additional funds (such as refusal to make a competing or noncompeting 
continuation renewal, extension or supplemental award);
    (3) Withdrawal of the unobligated balance as of the expiration of a 
grant; and
    (4) Annulment, i.e., voiding of a grant upon determination that the 
award was obtained fraudulently or was otherwise illegal or invalid from 
its inception.
    Total approved costs mean the sum of all costs of the Head Start 
program approved for a given budget period by the Administration for 
Children and Families, as indicated on the Financial Assistance Award. 
Total approved costs consist of the federal share plus any approved non-
federal match, including non-federal match above the statutory minimum.
    Transition period means the three-year time period after December 9, 
2011, on the Designation Renewal System during which ACF will convert 
all of the current continuous Head Start and Early Head Start grants 
into five-year grants after reviewing each grantee to determine if it 
meets any of the conditions under Sec. 1304.12 of this chapter that 
require recompetition or if the grantee will receive its first five-year 
grant non-competitively.
    Transportation services means the planned transporting of children 
to and from sites where an agency provides services funded under the 
Head Start Act. Transportation services can involve the pick-up and 
discharge of children at regularly scheduled times and pre-arranged 
sites, including trips between children's homes and program settings. 
The term includes services provided directly by the Head Start and Early 
Head Start grantee or delegate agency and services which such agencies 
arrange to be provided by another organization or an individual. 
Incidental trips, such as transporting a sick child home before the end 
of the day, or such as might be required to transport small groups of 
children to and from necessary services, are not included under the 
term.
    Verify or any variance of the word means to check or determine the 
correctness or truth by investigation or by reference.

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          SUBCHAPTER C_THE ADMINISTRATION FOR COMMUNITY LIVING





PART 1321_GRANTS TO STATE AND COMMUNITY PROGRAMS ON AGING--
Table of Contents



                         Subpart A_Introduction

Sec.
1321.1 Basis and purpose of this part.
1321.3 Definitions.
1321.5 Applicability of other regulations.

                 Subpart B_State Agency Responsibilities

1321.7 Mission of the State agency.
1321.9 Organization and staffing of the State agency.
1321.11 State agency policies.
1321.13 Advocacy responsibilities.
1321.15 Duration, format and effective date of the State plan.
1321.17 Content of State plan.
1321.19 Amendments to the State plan.
1321.21 Submission of the State plan or plan amendment to the 
          Commissioner for approval.
1321.23 Notification of State plan or State plan amendment approval.
1321.25 Restriction of delegation of authority to other agencies.
1321.27 Public participation.
1321.29 Designation of planning and service areas.
1321.31 Appeal to Commissioner.
1321.33 Designation of area agencies.
1321.35 Withdrawal of area agency designation.
1321.37 Intrastate funding formula.
1321.41 Single State planning and service area.
1321.43 Interstate planning and service area.
1321.45 Transfer between congregate and home-delivered nutrition service 
          allotments.
1321.47 Statewide non-Federal share requirements.
1321.49 State agency maintenance of effort.
1321.51 Confidentiality and disclosure of information.
1321.52 Evaluation of unmet need.

                 Subpart C_Area Agency Responsibilities

1321.53 Mission of the area agency.
1321.55 Organization and staffing of the area agency.
1321.57 Area agency advisory council.
1321.59 Submission of an area plan and plan amendments to the State for 
          approval.
1321.61 Advocacy responsibilities of the area agency.

                     Subpart D_Service Requirements

1321.63 Purpose of services allotments under Title III.
1321.65 Responsibilities of service providers under area plans.
1321.67 Service contributions.
1321.69 Service priority for frail, homebound or isolated elderly.
1321.71 Legal assistance.
1321.73 Grant related income under Title III-C.
1321.75 Licenses and safety.

             Subpart E_Hearing Procedures for State Agencies

1321.77 Scope.
1321.79 When a decision is effective.
1321.81 How the State may appeal.
1321.83 How the Commissioner may reallot the State's withheld payments.

    Authority: 42 U.S.C. 3001 et seq.; title III of the Older Americans 
Act, as amended.

    Source: 53 FR 33766, Aug. 31, 1988, unless otherwise noted.



                         Subpart A_Introduction



Sec. 1321.1  Basis and purpose of this part.

    (a) This part prescribes requirements State agencies shall meet to 
receive grants to develop comprehensive and coordinated systems for the 
delivery of supportive and nutrition services under title III of the 
Older Americans Act, as amended (Act). These requirements include:
    (1) Designation and responsibilities of State agencies;
    (2) State plans and amendments;
    (3) Services delivery; and
    (4) Hearing procedures for applicants for planning and services area 
designation.
    (b) The requirements of this part are based on title III of the Act. 
Title III provides for formula grants to State agencies on aging, under 
approved State plans, to stimulate the development or enhancement of 
comprehensive and coordinated community-based systems resulting in a 
continuum of services to older persons with special emphasis on older 
individuals with the greatest economic or social need, with

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particular attention to low-income minority individuals. A responsive 
community-based system of services shall include collaboration in 
planning, resource allocation and delivery of a comprehensive array of 
services and opportunities for all older Americans in the community. The 
intent is to use title III funds as a catalyst in bringing together 
public and private resources in the community to assure the provision of 
a full range of efficient, well coordinated and accessible services for 
older persons.
    (c) Each State agency designates planning and service areas in the 
State, and makes a subgrant or contract under an approved area plan to 
one area agency in each planning and service area for the purpose of 
building comprehensive systems for older people throughout the State. 
Area agencies in turn make subgrants or contracts to service providers 
to perform certain specified functions.



Sec. 1321.3  Definitions.

    Act means the Older Americans Act of 1965 as amended.
    Altering or renovating, as used in section 307(a)(14) of the Act 
with respect to multipurpose senior centers, means making modifications 
to or in connection with an existing facility which are necessary for 
its effective use as a center. These may include renovation, repair, or 
expansion which is not in excess of double the square footage of the 
original facility and all physical improvements.
    Constructing, as used in section 307(a)(14) of the Act with respect 
to multipurpose senior centers, means building a new facility, including 
the costs of land acquisition and architectural and engineering fees, or 
making modifications to or in connection with an existing facility which 
are in excess of double the square footage of the original facility and 
all physical improvements.
    Department means the Department of Health and Human Services.
    Direct services, as used in this part, means any activity performed 
to provide services directly to an individual older person by the staff 
of a service provider, an area agency, or a State agency in a single 
planning and service area State.
    Fiscal year, as used in this part, means the Federal Fiscal Year.
    Frail, as used in this part, means having a physical or mental 
disability, including having Alzheimer's disease or a related disorder 
with neurological or organic brain dysfunction, that restricts the 
ability of an individual to perform normal daily tasks or which 
threatens the capacity of an individual to live independently.
    Human services, as used in Sec. 1321.41(a)(1) of this part, with 
respect to criteria for designation of a statewide planning and service 
area, means social, health, or welfare services.
    In-home service, as used in this part, includes: (a) Homemaker and 
home health aides; (b) visiting and telephone reassurance; (c) chore 
maintenance; (d) in-home respite care for families, including adult day 
care as a respite service for families; and (e) minor modification of 
homes that is necessary to facilitate the ability of older individuals 
to remain at home, and that is not available under other programs, 
except that not more than $150 per client may be expended under this 
part for such modification.
    Means test, as used in the provison of services, means the use of an 
older person's income or resource to deny or limit that person's receipt 
of services under this part.
    Official duties, as used in section 307(a)(12)(J) of the Act with 
respect to representatives of the Long-Term Care Ombudsman Program, 
means work pursuant to the Long-Term Care Ombudsman Program authorized 
by the Act or State law and carried out under the auspices and general 
direction of the State Long-Term Care Ombudsman.
    Periodic, as used in sections 306(a)(6) and 307(a)(8) of the Act 
with respect to evaluations of, and public hearings on, activities 
carried out under State and area plans, means, at a minimum, once each 
fiscal year.
    Reservation, as used in section 305(b)(4) of the Act with respect to 
the designation of planning and service areas, means any federally or 
State recognized Indian tribe's reservation, pueblo, or colony, 
including former reservations in Oklahoma, Alaskan Native

[[Page 150]]

regions established pursuant to the Alaska Native Claims Settlement Act 
(85 Stat. 688), and Indian allotments.
    Service provider, as used in section 306(a)(1) of the Act with 
respect to the provison of supportive and nutrition services, means an 
entity that is awarded a subgrant or contract from an area agency to 
provide services under the area plan.
    Severe disability, as used to carry out the provisions of the Act, 
means a severe chronic disability attributable to mental and/or physical 
impairment of an individual that:
    (a) Is likely to continue indefinitely; and
    (b) Results in substantial functional limitation in 3 or more of the 
following major life activities:
    (1) Self-care,
    (2) Receptive and expressive language,
    (3) Learning,
    (4) Mobility,
    (5) Self-direction,
    (6) Capacity for independent living, and
    (7) Economic self-sufficiency.



Sec. 1321.5  Applicability of other regulations.

    Several other regulations apply to all activities under this part. 
These include but are not limited to:
    (a) 45 CFR part 16--Procedures of the Departmental Grant Appeals 
Board;
    (b) 45 CFR part 75--Uniform Administrative Requirements, Cost 
Principles, and Audit Requirements for HHS Awards, except Sec. 75.206;
    (c) 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;
    (d) 45 CFR part 81--Practice and Procedures for Hearings Under Part 
80 of this title;
    (e) 45 CFR part 84--Nondiscrimination on the Basis of Handicap in 
Programs and Activities Receiving or Benefiting from Federal Financial 
Participation;
    (f) 45 CFR part 91--Nondiscrimination on the Basis of Age in HHS 
Programs or Activities Receiving Federal Financial Assistance;
    (g) [Reserved]
    (h) 45 CFR part 100--Intergovernmental Review of Department of 
Health and Human Services Programs and Activities; and
    (i) 5 CFR part 900, subpart F, Standards for a Merit System of 
Personnel Administration.

[53 FR 33766, Aug. 31, 1988, as amended at 81 FR 3022, Jan. 20, 2016]



                 Subpart B_State Agency Responsibilities



Sec. 1321.7  Mission of the State agency.

    (a) The Older Americans Act intends that the State agency on aging 
shall be the leader relative to all aging issues on behalf of all older 
persons in the State. This means that the State agency shall proactively 
carry out a wide range of functions related to advocacy, planning, 
coordination, interagency linkages, information sharing, brokering, 
monitoring and evaluation, designed to lead to the development or 
enhancement of comprehensive and coordinated community based systems in, 
or serving, communities throughout the State. These systems shall be 
designed to assist older persons in leading independent, meaningful and 
dignified lives in their own homes and communities as long as possible.
    (b) The State agency shall designate area agencies on aging for the 
purpose of carrying out the mission described above for the State agency 
at the sub-State level. The State agency shall designate as its area 
agencies on aging only those sub-state agencies having the capacity and 
making the commitment to fully carry out the mission described for area 
agencies in Sec. 1321.53 below.
    (c) The State agency shall assure that the resources made available 
to area agencies on aging under the Older Americans Act are used to 
carry out the mission described for area agencies in Sec. 1321.53 
below.



Sec. 1321.9  Organization and staffing of the State agency.

    (a) The State shall designate a sole State agency to develop and 
administer the State plan required under this part

[[Page 151]]

and serve as the effective visible advocate for the elderly within the 
State.
    (b) The State agency shall have an adequate number of qualified 
staff to carry out the functions prescribed in this part.
    (c) The State agency shall have within the State agency, or shall 
contract or otherwise arrange with another agency or organization, as 
permitted by section 307(a)(12)(A), an Office of the State Long-Term 
Care Ombudsman, with a full-time State ombudsman and such other staff as 
are appropriate.
    (d) If a State statute establishes a State ombudsman program which 
will perform the functions of section 307(a)(12) of the Act, the State 
agency continues to be responsible to assure that all of the 
requirements of the Act for this program are met regardless of the State 
legislation or source of funds. In such cases, the Governor shall 
confirm this through an assurance in the State plan.



Sec. 1321.11  State agency policies.

    (a) The State agency on aging shall develop policies governing all 
aspects of programs operated under this part, including the ombudsman 
program whether operated directly by the State agency or under contract. 
These policies shall be developed in consultation with other appropriate 
parties in the State. The State agency is responsible for enforcement of 
these policies.
    (b) The policies developed by the State agency shall address the 
manner in which the State agency will monitor the performance of all 
programs and activities initiated under this part for quality and 
effectiveness. The State Long-Term Care Ombudsman shall be responsible 
for monitoring the files, records and other information maintained by 
the Ombudsman program. Such monitoring may be conducted by a designee of 
the Ombudsman. Neither the Ombudsman nor a designee shall disclose 
identifying information of any complainant or long-term care facility 
resident to individuals outside of the Ombudsman program, except as 
otherwise specifically provided in Sec. 1324.11(e)(3) of this chapter.

[53 FR 33766, Aug. 31, 1988, as amended at 80 FR 7758, Feb. 11, 2015; 81 
FR 35645, June 3, 2016]



Sec. 1321.13  Advocacy responsibilities.

    (a) The State agency shall:
    (1) Review, monitor, evaluate and comment on Federal, State and 
local plans, budgets, regulations, programs, laws, levies, hearings, 
policies, and actions which affect or may affect older individuals and 
recommend any changes in these which the State agency considers to be 
appropriate;
    (2) Provide technical assistance to agencies, organizations, 
associations, or individuals representing older persons; and
    (3) Review and comment, upon request, on applications to State and 
Federal agencies for assistance relating to meeting the needs of older 
persons.
    (b) No requirement in this section shall be deemed to supersede a 
prohibition contained in a Federal appropriation on the use of Federal 
funds to lobby the Congress.



Sec. 1321.15  Duration, format and effective date of the State plan.

    (a) A State may use its own judgment as to the format to use for the 
plan, how to collect information for the plan, and whether the plan will 
remain in effect for two, three or four years.
    (b) An approved State plan or amendment, as indentified in Sec. 
1321.17, becomes effective on the date designated by the Commissioner.
    (c) A State agency may not make expenditures under a new plan or 
amendment requiring approval, as identified in Sec. 1321.17 and Sec. 
1321.19, until it is approved.



Sec. 1321.17  Content of State plan.

    To receive a grant under this part, a State shall have an approved 
State plan as prescribed in section 307 of the Act. In addition to 
meeting the requirements of section 307, a State plan shall include:
    (a) Identification by the State of the sole State agency that has 
been designated to develop and administer the plan.
    (b) Statewide program objectives to implement the requirements under 
Title III of the Act and any objectives established by the Commissioner 
through the rulemaking process.

[[Page 152]]

    (c) A resource allocation plan indicating the proposed use of all 
title III funds administered by a State agency, and the distribution of 
title III funds to each planning and service area.
    (d) Identification of the geographic boundaries of each planning and 
service area and of area agencies on aging designated for each planning 
and service area, if appropriate.
    (e) Provision of prior Federal fiscal year information related to 
low income minority and rural older individuals as required by sections 
307(a) (23) and (29) of the Act.
    (f) Each of the assurances and provisions required in sections 305 
and 307 of the Act, and provisions that the State meets each of the 
requirements under Sec. Sec. 1321.5 through 1321.75 of this part, and 
the following assurances as prescribed by the Commissioner:
    (1) Each area agency engages only in activities which are consistent 
with its statutory mission as prescribed in the Act and as specified in 
State policies under Sec. 1321.11;
    (2) Preference is given to older persons in greatest social or 
economic need in the provision of services under the plan;
    (3) Procedures exist to ensure that all services under this part are 
provided without use of any means tests;
    (4) All services provided under title III meet any existing State 
and local licensing, health and safety requirements for the provision of 
those services;
    (5) Older persons are provided opportunities to voluntarily 
contribute to the cost of services;
    (6) Area plans shall specify as submitted, or be amended annually to 
include, details of the amount of funds expended for each priority 
service during the past fiscal year;
    (7) The State agency on aging shall develop policies governing all 
aspects of programs operated under this part, including the manner in 
which the ombudsman program operates at the State level and the relation 
of the ombudsman program to area agencies where area agencies have been 
designated;
    (8) The State agency will require area agencies on aging to arrange 
for outreach at the community level that identifies individuals eligible 
for assistance under this Act and other programs, both public and 
private, and informs them of the availability of assistance. The 
outreach efforts shall place special emphasis on reaching older 
individuals with the greatest economic or social needs with particular 
attention to low income minority individuals, including outreach to 
identify older Indians in the planning and service area and inform such 
older Indians of the availability of assistance under the Act.
    (9) The State agency shall have and employ appropriate procedures 
for data collection from area agencies on aging to permit the State to 
compile and transmit to the Commissioner accurate and timely statewide 
data requested by the Commissioner in such form as the Commissioner 
directs; and
    (10) If the State agency proposes to use funds received under 
section 303(f) of the Act for services other than those for preventive 
health specified in section 361, the State plan shall demonstrate the 
unmet need for the services and explain how the services are appropriate 
to improve the quality of life of older individuals, particularly those 
with the greatest economic or social need, with special attention to 
low-income minorities.
    (11) Area agencies shall compile available information, with 
necessary supplementation, on courses of post-secondary education 
offered to older individuals with little or no tuition. The assurance 
shall include a commitment by the area agencies to make a summary of the 
information available to older individuals at multipurpose senior 
centers, congregate nutrition sites, and in other appropriate places.
    (12) Individuals with disabilities who reside in a non-institutional 
household with and accompany a person eligible for congregate meals 
under this part shall be provided a meal on the same basis that meals 
are provided to volunteers pursuant to section 307(a)(13)(I) of the Act.
    (13) The services provided under this part will be coordinated, 
where appropriate, with the services provided under title VI of the Act.
    (14)(i) The State agency will not fund program development and 
coordinated

[[Page 153]]

activities as a cost of supportive services for the administration of 
area plans until it has first spent 10 percent of the total of its 
combined allotments under Title III on the administration of area plans;
    (ii) State and area agencies on aging will, consistent with 
budgeting cycles (annually, biannually, or otherwise), submit the 
details of proposals to pay for program development and coordination as 
a cost of supportive services, to the general public for review and 
comment; and
    (iii) The State agency certifies that any such expenditure by an 
area agency will have a direct and positive impact on the enhancement of 
services for older persons in the planning and service area.
    (15) The State agency will assure that where there is a significant 
population of older Indians in any planning and service area that the 
area agency will provide for outreach as required by section 
306(a)(6)(N) of the Act.



Sec. 1321.19  Amendments to the State plan.

    (a) A State shall amend the State plan whenever necessary to 
reflect:
    (1) New or revised Federal statutes or regulations,
    (2) A material change in any law, organization, policy or State 
agency operation, or
    (3) Information required annually by sections 307(a) (23) and (29) 
of the Act.
    (b) Information required by paragraph (a)(3) of this section shall 
be submitted according to guidelines prescribed by the Commissioner.
    (c) If a State intends to amend provisions of its plan required 
under Sec. Sec. 1321.17 (a) or (f), it shall submit its proposed 
amendment to the Commissioner for approval. If the State changes any of 
the provisions of its plan required under Sec. 1321.17 (b) through (d), 
it shall amend the plan and notify the Commissioner. A State need only 
submit the amended portions of the plan.



Sec. 1321.21  Submission of the State plan or plan amendment to the 
Commissioner for approval.

    Each State plan, or plan amendment which requires approval of the 
Commissioner, shall be signed by the Governor or the Governor's designee 
and submitted to the Commissioner to be considered for approval at least 
45 calendar days before the proposed effective date of the plan or plan 
amendment.



Sec. 1321.23  Notification of State plan or State plan amendment
approval.

    (a) The Commissioner approves a State plan or State plan amendment 
by notifying the Governor or the Governor's designee in writing.
    (b) When the Commissioner proposes to disapprove a State plan or 
amendment, the Commissioner notifies the Governor in writing, giving the 
reasons for the proposed disapproval, and informs the State agency that 
it has 60 days to request a hearing on the proposed disapproval 
following the procedures specified in subpart E of this part.



Sec. 1321.25  Restriction of delegation of authority to other
agencies.

    A State or area agency may not delegate to another agency the 
authority to award or administer funds under this part.



Sec. 1321.27  Public participation.

    The State agency shall have a mechanism to obtain and shall consider 
the views of older persons and the public in developing and 
administering the State plan.



Sec. 1321.29  Designation of planning and service areas.

    (a) Any unit of general purpose local government, region within a 
State recognized for area wide planning, metropolitan area, or Indian 
reservation may make application to the State agency to be designated as 
a planning and service area, in accordance with State agency procedures.
    (b) A State agency shall approve or disapprove any application 
submitted under paragraph (a) of this section.
    (c) Any applicant under paragraph (a) of this section whose 
application for designation as a planning and service area is denied by 
a State agency may appeal the denial to the State agency, under 
procedures specified by the State agency.

[[Page 154]]

    (d) If the State denies an applicant for designation as a planning 
and service area under paragraph (a) of this section, the State shall 
provide a hearing on the denial of the application, if requested by the 
applicant, as well as issue a written decision.



Sec. 1321.31  Appeal to Commissioner.

    This section sets forth the procedures the Commissioner follows for 
providing hearings to applicants for designation as a planning and 
service area, under Sec. 1321.29(a), whose application is denied by the 
State agency.
    (a) Any applicant for designation as a planning and service area 
under Sec. 1321.29(a) whose application is denied, and who has been 
provided a hearing and a written decision by the State agency, may 
appeal the denial to the Commissioner in writing within 30 days 
following receipt of a State's hearing decision.
    (b) The Commissioner, or the Commissioner's designee, holds a 
hearing, and issues a written decision, within 60 days following receipt 
of an applicant's written request to appeal the State agency hearing 
decision to deny the applicant's request under Sec. 1321.29(a).
    (c) When the Commissioner receives an appeal, the Commissioner 
requests the State Agency to submit:
    (1) A copy of the applicant's application for designation as a 
planning and service area;
    (2) A copy of the written decision of the State; and
    (3) Any other relevant information the Commissioner may require.
    (d) The procedures for the appeal consist of:
    (1) Prior written notice to the applicant and the State agency of 
the date, time and location of the hearing;
    (2) The required attendance of the head of the State agency or 
designated representatives;
    (3) An opportunity for the applicant to be represented by counsel or 
other representative; and
    (4) An opportunity for the applicant to be heard in person and to 
present documentary evidence.
    (e) The Commissioner may:
    (1) Deny the appeal and uphold the decision of a State agency;
    (2) Uphold the appeal and require a State agency to designate the 
applicant as a planning and service area; or
    (3) Take other appropriate action, including negotiating between the 
parties or remanding the appeal to the State agency after initial 
findings.
    (f) The Commissioner will uphold the decision of the State agency if 
it followed the procedures specified in Sec. 1321.29, and the hearing 
decision is not manifestly inconsistent with the purpose of this part.
    (g) The Commissioner's decision to uphold the decision of a State 
agency does not extend beyond the period of the approved State plan.



Sec. 1321.33  Designation of area agencies.

    An area agency may be any of the types of agencies under section 
305(c) of the Act. A State may not designate any regional or local 
office of the State as an area agency. However, when a new area agency 
on aging is designated, the State shall give right of first refusal to a 
unit of general purpose local government as required in section 
305(b)(5)(B) of the Act. If the unit of general purpose local government 
chooses not to exercise this right, the State shall then give preference 
to an established office on aging as required in section 305(c)(5) of 
the Act.



Sec. 1321.35  Withdrawal of area agency designation.

    (a) In carrying out section 305 of the Act, the State agency shall 
withdraw the area agency designation whenever it, after reasonable 
notice and opportunity for a hearing, finds that:
    (1) An area agency does not meet the requirements of this part;
    (2) An area plan or plan amendment is not approved;
    (3) There is substantial failure in the provisions or administration 
of an approved area plan to comply with any provision of the Act or of 
this part or policies and procedures established and published by the 
State agency on aging; or
    (4) Activities of the area agency are inconsistent with the 
statutory mission prescribed in the Act or in conflict with the 
requirement of the Act that it function only as an area agency on aging.

[[Page 155]]

    (b) If a State agency withdraws an area agency's designation under 
paragraph (a) of this section it shall:
    (1) Provide a plan for the continuity of area agency functions and 
services in the affected planning and service area; and
    (2) Designate a new area agency in the planning and service area in 
a timely manner.
    (c) If necessary to ensure continuity of services in a planning and 
service area, the State agency may, for a period of up to 180 days after 
its final decision to withdraw designation of an area agency:
    (1) Perform the responsibilities of the area agency; or
    (2) Assign the responsibilities of the area agency to another agency 
in the planning and service area.
    (d) The Commissioner may extend the 180-day period if a State 
agency:
    (1) Notifies the Commissioner in writing of its action under 
paragraph (c) of this section;
    (2) Requests an extension; and
    (3) Demonstrates to the satisfaction of the Commissioner a need for 
the extension.



Sec. 1321.37  Intrastate funding formula.

    (a) The State agency, after consultation with all area agencies in 
the State, shall develop and use an intrastate funding formula for the 
allocation of funds to area agencies under this part. The State agency 
shall publish the formula for review and comment by older persons, other 
appropriate agencies and organizations and the general public. The 
formula shall reflect the proportion among the planning and service 
areas of persons age 60 and over in greatest economic or social need 
with particular attention to low-income minority individuals. The State 
agency shall review and update its formula as often as a new State plan 
is submitted for approval.
    (b) The intrastate funding formula shall provide for a separate 
allocation of funds received under section 303(f) for preventive health 
services. In the award of such funds to selected planning and service 
areas, the State agency shall give priority to areas of the State:
    (1) Which are medically underserved; and
    (2) In which there are large numbers of individuals who have the 
greatest economic and social need for such services.
    (c) The State agency shall submit its intrastate formula to the 
Commissioner for review and comment. The intrastate formula shall be 
submitted separately from the State plan.



Sec. 1321.41  Single State planning and service area.

    (a) The Commissioner will approve the application of a State which 
was, on or before October 1, 1980, a single planning and service area, 
to continue as a single planning and service area if the State agency 
demonstrates that:
    (1) The State is not already divided for purposes of planning and 
administering human services; or
    (2) The State is so small or rural that the purposes of this part 
would be impeded if the State were divided into planning and services 
areas; and
    (3) The State agency has the capacity to carry out the 
responsibilities of an area agency, as specified in the Act.
    (b) Prior to the Commissioner's approval for a State to continue as 
a single planning and service area, all the requirements and procedures 
in Sec. 1321.29 shall be met.
    (c) If the Commissioner approves a State's application under 
paragraph (a) this section:
    (1) The Commissioner notifies the State agency to develop a single 
State planning and service area plan which meets the requirements of 
section 306 and 307 of the Act.
    (2) A State agency shall meet all the State and area agency function 
requirements specified in the Act.
    (d) If the Commissioner denies the application because a State fails 
to meet the criteria or requirements set forth in paragraphs (a) or (b) 
of this section, the Commissioner notifies the State that it shall 
follow procedures in section 305(A)(1)(E) of the Act to divide the State 
into planning and service areas.

[[Page 156]]



Sec. 1321.43  Interstate planning and service area.

    (a) Before requesting permission of the Commissioner to designate an 
interstate planning and service area, the Governor of each State shall 
execute a written agreement that specifies the State agency proposed to 
have lead responsibility for administering the programs within the 
interstate planning and service area and lists the conditions, agreed 
upon by each State, governing the administration of the interstate 
planning and service area.
    (b) The lead State shall request permission of the Commissioner to 
designate an interstate planning and service area.
    (c) The lead State shall submit the request together with a copy of 
the agreement as part of its State plan or as an amendment to its State 
plan.
    (d) Prior to the Commissioner's approval for States to designate an 
interstate planning and service area, the Commissioner shall determine 
that all applicable requirements and procedures in Sec. 1321.29 and 
Sec. 1321.33 of this part, shall be met.
    (e) If the request is approved, the Commissioner, based on the 
agreement between the States, increases the allotment of the State with 
lead responsibility for administering the programs within the interstate 
area and reduces the allotment(s) of the State(s) without lead 
responsibility by one of these methods:
    (1) Reallotment of funds in proportion to the number of individuals 
age 60 and over for that portion of the interstate planning and service 
area located in the State without lead responsibility; or
    (2) Reallotment of funds based on the intrastate funding formula of 
the State(s) without lead responsibility.



Sec. 1321.45  Transfer between congregate and home-delivered nutrition
service allotments.

    (a) A State agency, without the approval of the Commissioner, may 
transfer between allotments up to 30 percent of a State's separate 
allotments for congregate and home-delivered nutrition services.
    (b) A State agency may apply to the Commissioner to transfer from 
one allotment to the other a portion exceeding 30 percent of a State's 
separate allotments for congregate and home-delivered nutrition 
services. A State agency desiring such a transfer of allotment shall:
    (1) Specify the percent which it proposes to transfer from one 
allotment to the other;
    (2) Specify whether the proposed transfer is for the entire period 
of a State plan or a protion of a plan period; and
    (3) Specify the purpose of the proposed transfer.



Sec. 1321.47  Statewide non-Federal share requirements.

    The statewide non-Federal share for State or area plan 
administration shall not be less than 25 percent of the funds usesd 
under this part. All services statewide, including ombudsman services 
and services funded under Title III-B, C, D, E and F, shall be funded on 
a statewide basis with a non-Federal share of not less than 15 percent. 
Matching requirements for individual area agencies are determined by the 
State agency.



Sec. 1321.49  State agency maintenance of effort.

    In order to avoid a penalty, each fiscal year the State agency, to 
meet the required non-federal share applicable to its allotments under 
this part, shall spend under the State plan for both services and 
administration at least the average amount of State funds it spent under 
the plan for the three previous fiscal years. If the State agency spends 
less than this amount, the Commissioner reduces the State's allotments 
for supportive and nutrition services under this part by a percentage 
equal to the percentage by which the State reduced its expenditures.



Sec. 1321.51  Confidentiality and disclosure of information.

    (a) A State agency shall have procedures to protect the 
confidentiality of information about older persons collected in the 
conduct of its responsibilities. The procedures shall ensure that no 
information about an order person, or obtained from an older person by a 
service provider or the State or area

[[Page 157]]

agencies, is disclosed by the provider or agency in a form that 
identifies the person without the informed consent of the person or of 
his or her legal representative, unless the disclosure is required by 
court order, or for program monitoring by authorized Federal, State, or 
local monitoring agencies.
    (b) A State agency is not required to disclose those types of 
information or documents that are exempt from disclosure by a Federal 
agency under the Federal Freedom of Information Act, 5 U.S.C. 552.
    (c) A State or area agency on aging may not require a provider of 
legal assistance under this part to reveal any information that is 
protected by attorney client privilege.



Sec. 1321.52  Evaluation of unmet need.

    Each State shall submit objectively collected and statistically 
valid data with evaluative conclusions concerning the unmet need for 
supportive services, nutrition services, and multipurpose senior centers 
gathered pursuant to section 307(a)(3)(A) of the Act to the 
Commissioner. The evaluations for each State shall consider all services 
in these categories regardless of the source of funding for the 
services. This information shall be submitted not later than June 30, 
1989 and shall conform to guidance issued by the Commissioner.



                 Subpart C_Area Agency Responsibilities



Sec. 1321.53  Mission of the area agency.

    (a) The Older Americans Act intends that the area agency on aging 
shall be the leader relative to all aging issues on behalf of all older 
persons in the planning and service area. This means that the area 
agency shall proactively carry out, under the leadership and direction 
of the State agency, a wide range of functions related to advocacy, 
planning, coordination, inter-agency linkages, information sharing, 
brokering, monitoring and evaluation, designed to lead to the 
development or enhancement of comprehensive and coordinated community 
based systems in, or serving, each community in the planning and service 
area. These systems shall be designed to assist older persons in leading 
independent, meaningful and dignified lives in their own homes and 
communities as long as possible.
    (b) A comprehensive and coordinated community based system described 
in paragraph (a) of this section shall:
    (1) Have a visible focal point of contact where anyone can go or 
call for help, information or referral on any aging issue;
    (2) Provide a range of options:
    (3) Assure that these options are readily accessible to all older 
persons: The independent, semi-dependent and totally dependent, no 
matter what their income;
    (4) Include a commitment of public, private, voluntary and personal 
resources committed to supporting the system;
    (5) Involve collaborative decision-making among public, private, 
voluntary, religious and fraternal organizations and older people in the 
community;
    (6) Offer special help or targetted resources for the most 
vulnerable older persons, those in danger of losing their independence;
    (7) Provide effective referral from agency to agency to assure that 
information or assistance is received, no matter how or where contact is 
made in the community;
    (8) Evidence sufficient flexibility to respond with appropriate 
individualized assistance, especially for the vulnerable older person;
    (9) Have a unique character which is tailored to the specific nature 
of the community;
    (10) Be directed by leaders in the community who have the respect, 
capacity and authority necessary to convene all interested persons, 
assess needs, design solutions, track overall success, stimulate change 
and plan community responses for the present and for the future.
    (c) The resources made available to the area agency on aging under 
the Older Americans Act are to be used to finance those activities 
necessary to achieve elements of a community based system set forth in 
paragraph (b) of this section. For the purpose of assuring access to 
information and services for older persons, the area agency

[[Page 158]]

shall work with elected community officials in the planning and service 
area to designate one or more focal points on aging in each community, 
as appropriate. The area agency shall list designated focal points in 
the area plan. It shall be the responsibility of the area agency, with 
the approval of the State agency, to define ``community'' for the 
purposes of this section. Since the Older Americans Act defines focal 
point as a ``facility'' established to encourage the maximum collocation 
and coordination of services for older individuals, special 
consideration shall be given to developing and/or designating multi-
purpose senior centers as community focal points on aging. The area 
agency on aging shall assure that services financed under the Older 
Americans Act in, or on behalf of, the community will be either based 
at, linked to or coordinated with the focal points designated. The area 
agency on aging shall assure access from the designated focal points to 
services financed under the Older Americans Act. The area agency on 
aging shall work with, or work to assure that community leadership works 
with, other applicable agencies and institutions in the community to 
achieve maximum collocation at, coordination with or access to other 
services and opportunities for the elderly from the designated community 
focal points. The area agency may not engage in any activity which is 
inconsistent with its statutory mission prescribed in the Act or 
policies prescribed by the State under Sec. 1321.11.



Sec. 1321.55  Organization and staffing of the area agency.

    (a) An area agency may be either:
    (1) An agency whose single purpose is to administer programs for 
older persons; or
    (2) A separate organizational unit within a multi-purpose agency 
which functions only for purposes of serving as the area agency on 
aging. Where the State agency on aging designates, as an area agency on 
aging, a separate organizational unit of a multipurpose agency which has 
been serving as an area agency, the State agency action shall not be 
subject to section 305(b)(5)(B) of the Act.
    (b) The area agency, once designated, is responsible for providing 
for adequate and qualified staff to perform all of the functions 
prescribed in this part.
    (c) The designated area agency continues to function in that 
capacity until either:
    (1) The area agency informs the State agency that it no longer 
wishes to carry out the responsibilities of an area agency; or
    (2) The State agency withdraws the designation of the area agency as 
provided in Sec. 1321.35.



Sec. 1321.57  Area agency advisory council.

    (a) Functions of council. The area agency shall establish an 
advisory council. The council shall carry out advisory functions which 
further the area agency's mission of developing and coordinating 
community-based systems of services for all older persons in the 
planning and service area. The council shall advise the agency relative 
to:
    (1) Developing and administering the area plan;
    (2) Conducting public hearings;
    (3) Representing the interest of older persons; and
    (4) Reviewing and commenting on all community policies, programs and 
actions which affect older persons with the intent of assuring maximum 
coordination and responsiveness to older persons.
    (b) Composition of council. The council shall include individuals 
and representatives of community organizations who will help to enhance 
the leadership role of the area agency in developing community-based 
systems of services. The advisory council shall be made up of:
    (1) More than 50 percent older persons, including minority 
individuals who are participants or who are eligible to participate in 
programs under this part;
    (2) Representatives of older persons;
    (3) Representatives of health care provider organizations, including 
providers of veterans' health care (if appropriate);
    (4) Representatives of supportive services providers organizations;
    (5) Persons with leadership experience in the private and voluntary 
sectors;

[[Page 159]]

    (6) Local elected officials; and
    (7) The general public.
    (c) Review by advisory council. The area agency shall submit the 
area plan and amendments for review and comment to the advisory council 
before it is transmitted to the State agency for approval.



Sec. 1321.59  Submission of an area plan and plan amendments to the
State for approval.

    The area agency shall submit the area plan and amendments to the 
State agency for approval following procedures specified by the State 
agency in the State policies prescribed by Sec. 1321.11.



Sec. 1321.61  Advocacy responsibilities of the area agency.

    (a) The area agency shall serve as the public advocate for the 
development or enhancement of comprehensive and coordinated community-
based systems of services in each community throughout the planning and 
service area.
    (b) In carrying out this responsibility, the area agency shall:
    (1) Monitor, evaluate, and, where appropriate, comment on all 
policies, programs, hearings, levies, and community actions which affect 
older persons;
    (2) Solicit comments from the public on the needs of older persons;
    (3) Represent the interests of older persons to local level and 
executive branch officials, public and private agencies or 
organizations;
    (4) Consult with and support the State's long-term care ombudsman 
program; and
    (5) Undertake on a regular basis activities designed to facilitate 
the coordination of plans and activities with all other public and 
private organizations, including units of general purpose local 
government, with responsibilities affecting older persons in the 
planning and service area to promote new or expanded benefits and 
opportunities for older persons; and
    (c) Each area agency on aging shall undertake a leadership role in 
assisting communities throughout the planning and service area to target 
resources from all appropriate sources to meet the needs of older 
persons with greatest economic or social need, with particular attention 
to low income minority individuals. Such activities may include location 
of services and specialization in the types of services must needed by 
these groups to meet this requirement. However, the area agency may not 
permit a grantee or contractor under this part to employ a means test 
for services funded under this part.
    (d) No requirement in this section shall be deemed to supersede a 
prohibition contained in the Federal appropriation on the use of Federal 
funds to lobby the Congress; or the lobbying provision applicable to 
private nonprofit agencies and organizations contained in OMB Circular 
A-122.



                     Subpart D_Service Requirements



Sec. 1321.63  Purpose of services allotments under Title III.

    (a) Title III of the Older Americans Act authorizes the distribution 
of Federal funds to the State agency on aging by formula for the 
following categories of services:
    (1) Supportive services;
    (2) Congregate meals services;
    (3) Home delivered meals services;
    (4) In-home services;
    (5) Ombudsman services;
    (6) Special needs services;
    (7) Elder abuse services;
    (8) Preventive health services; and
    (9) Outreach services.

Funds authorized under these categories are for the purpose of assisting 
the State and its area agencies to develop or enhance for older persons 
comprehensive and coordinated community based systems as described in 
Sec. 1321.53(b) throughout the State.
    (b) Except for ombudsman services, State agencies on aging will 
award the funds made available under paragraph (a) of this section to 
designated area agencies on aging according to the formula determined by 
the State agency. Except where a waiver is granted by the State agency, 
area agencies shall award these funds by grant or contract to community 
services provider agencies and organizations. All funds awarded to area 
agencies under this part are for the purpose of assisting area agencies 
to develop or enhance

[[Page 160]]

comprehensive and coordinated community based systems for older persons 
in, or serving, communities throughout the planning and service area.



Sec. 1321.65  Responsibilities of service providers under area plans.

    As a condition for receipt of funds under this part, each area 
agency on aging shall assure that providers of services shall:
    (a) Provide the area agency, in a timely manner, with statistical 
and other information which the area agency requires in order to meet 
its planning, coordination, evaluation and reporting requirements 
established by the State under Sec. 1321.13;
    (b) Specify how the provider intends to satisfy the service needs of 
low-income minority individuals in the area served, including attempting 
to provide services to low-income minority individuals at least in 
proportion to the number of low-income minority older persons in the 
population serviced by the provider;
    (c) Provide recipients with an opportunity to contribute to the cost 
of the service as provided in Sec. 1321.67;
    (d) With the consent of the older person, or his or her 
representative, bring to the attention of appropriate officials for 
follow-up, conditions or circumstances which place the older person, or 
the household of the older person, in imminent danger;
    (e) Where feasible and appropriate, make arrangements for the 
availability of services to older persons in weather related 
emergencies;
    (f) Assist participants in taking advantage of benefits under other 
programs; and
    (g) Assure that all services funded under this part are coordinated 
with other appropriate services in the community, and that these 
services do not constitute an unnecessary duplication of services 
provided by other sources.



Sec. 1321.67  Service contributions.

    (a) For services rendered with funding under the Older Americans 
Act, the area agency on aging shall assure that each service provider 
shall:
    (1) Provide each older person with an opportunity to voluntarily 
contribute to the cost of the service;
    (2) Protect the privacy of each older person with respect to his or 
her contributions; and
    (3) Establish appropriate procedures to safeguard and account for 
all contributions.
    (b) Each service provider shall use supportive services and 
nutrition services contributions to expand supportive services and 
nutrition services respectively. To that end, the State agency shall:
    (1) Permit service providers to follow either the addition 
alternative or the cost sharing alternatives as stated in 45 CFR 
75.307(e)(2) and (3); or
    (2) A combination of the two alternatives.
    (c) Each service provider under the Older Americans Act may develop 
a suggested contribution schedule for services provided under this part. 
In developing a contribution schedule, the provider shall consider the 
income ranges of older persons in the community and the provider's other 
sources of income. However, means tests may not be used for any service 
supported with funds under this part. State agencies, in developing 
State eligibility criteria for in-home services under section 343 of the 
Act, may not include a means test as an eligibility criterion.
    (d) A service provider that receives funds under this part may not 
deny any older person a service because the older person will not or 
cannot contribute to the cost of the service.

[53 FR 33766, Aug. 31, 1988, as amended at 81 FR 3022, Jan. 20, 2016]



Sec. 1321.69  Service priority for frail, homebound or isolated
elderly.

    (a) Persons age 60 or over who are frail, homebound by reason of 
illness or incapacitating disability, or otherwise isolated, shall be 
given priority in the delivery of services under this part.
    (b) The spouse of the older person, regardless of age or condition, 
may receive a home-delivered meal if, according to criteria determined 
by the area agency, receipt of the meal is in the best interest of the 
homebound older person.

[[Page 161]]



Sec. 1321.71  Legal assistance.

    (a) The provisions and restrictions in this section apply only to 
legal assistance providers and only if they are providing legal 
assistance under section 307(a)(15) of the Act.
    (b) Nothing in this section is intended to prohibit any attorney 
from providing any form of legal assistance to an eligible client, or to 
interfere with the fulfillment of any attorney's professional 
responsibilities to a client.
    (c) The area agency shall award funds to the legal assistance 
provider(s) that most fully meet the standards in this subsection. The 
legal assistance provider(s) shall:
    (1) Have staff with expertise in specific areas of law affecting 
older persons in economic or social need, for example, public benefits, 
institutionalization and alternatives to institutionalization;
    (2) Demonstrate the capacity to provide effective administrative and 
judicial representation in the areas of law affecting older persons with 
economic or social need;
    (3) Demonstrate the capacity to provide support to other advocacy 
efforts, for example, the long-term care ombudsman program;
    (4) Demonstrate the capacity to provide legal services to 
institutionalized, isolated, and homebound older individuals 
effectively; and
    (5) Demonstrate the capacity to provide legal assistance in the 
principal language spoken by clients in areas where a significant number 
of clients do not speak English as their principal language.
    (d) A legal assistance provider may not require an older person to 
disclose information about income or resources as a condition for 
providing legal assistance under this part.
    (e) A legal assistance provider may ask about the person's financial 
circumstances as a part of the process of providing legal advice, 
counseling and representation, or for the purpose of identifying 
additional resources and benefits for which an older person may be 
eligible.
    (f) A legal assistance provider and its attorneys may engage in 
other legal activities to the extent that there is no conflict of 
interest nor other interference with their professional responsibilities 
under this Act.
    (g) No provider shall use funds received under the Act to provide 
legal assistance in a fee generating case unless other adequate 
representation is unavailable or there is an emergency requiring 
immediate legal action. All providers shall establish procedures for the 
referral of fee generating cases.
    (1) ``Fee generating case'' means any case or matter which, if 
undertaken on behalf of an eligible client by an attorney in private 
practice, reasonably may be expected to result in a fee for legal 
services from an award to a client, from public funds, or from the 
opposing party.
    (2) Other adequate representation is deemed to be unavailable when:
    (i) Recovery of damages is not the principal object of the client; 
or
    (ii) A court appoints a provider or an employee of a provider 
pursuant to a statute or a court rule or practice of equal applicability 
to all attorneys in the jurisdiction; or
    (iii) An eligible client is seeking benefits under title II of the 
Social Security Act, 42 U.S.C. 401, et seq., Federal Old Age, Survivors, 
and Disability Insurance Benefits; or title XVI of the Social Security 
Act, 42 U.S.C. 1381, et seq., Supplemental Security Income for Aged, 
Blind, and Disabled.
    (3) A provider may seek and accept a fee awarded or approved by a 
court or administrative body, or included in a settlement.
    (4) When a case or matter accepted in accordance with this section 
results in a recovery of damages, other than statutory benefits, a 
provider may accept reimbursement for out-of-pocket costs and expenses 
incurred in connection with the case or matter.
    (h) A provider, employee of the provider, or staff attorney shall 
not engage in the following prohibited political activities:
    (1) No provider or its employees shall contribute or make available 
Older Americans Act funds, personnel or equipment to any political party 
or association or to the campaign of any candidate for public or party 
office; or for use in advocating or opposing any ballot measure, 
initiative, or referendum;

[[Page 162]]

    (2) No provider or its employees shall intentionally identify the 
title III program or provider with any partisan or nonpartisan political 
activity, or with the campaign of any candidate for public or party 
office;
    (3) While engaged in legal assistance activities supported under the 
Act, no attorney shall engage in any political activity;
    (i) No funds made available under the Act shall be used for lobbying 
activities, including but not limited to any activities intended to 
influence any decision or activity by any nonjudicial Federal, State or 
local individual or body. Nothing in this section is intended to 
prohibit an employee from:
    (1) Communicating with a governmental agency for the purpose of 
obtaining information, clarification, or interpretation of the agency's 
rules, regulations, practices, or policies;
    (2) Informing a client about a new or proposed statute, executive 
order, or administrative regulation;
    (3) Responding to an individual client's request for advice only 
with respect to the client's own communications to officials unless 
otherwise prohibited by the Older Americans Act, title III regulations 
or other applicable law. This provision does not authorize publication 
of lobbying materials or training of clients on lobbying techniques or 
the composition of a communication for the client's use; or
    (4) Making direct contact with the area agency for any purpose;
    (5) Providing a client with administrative representation in 
adjudicatory or rulemaking proceedings or negotiations, directly 
affecting that client's legal rights in a particular case, claim or 
application;
    (6) Communicating with an elected official for the sole purpose of 
bringing a client's legal problem to the attention of that official; or
    (7) Responding to the request of a public official or body for 
testimony, legal advice or other statements on legislation or other 
issues related to aging; provided that no such action will be taken 
without first obtaining the written approval of the responsible area 
agency.
    (j) While carrying out legal assistance activities and while using 
resources provided under the Act, no provider or its employees shall:
    (1) Participate in any public demonstration, picketing, boycott, or 
strike, except as permitted by law in connection with the employee's own 
employment situation;
    (2) Encourage, direct, or coerce others to engage in such 
activities; or
    (3) At any time engage in or encourage others to engage in:
    (i) Any illegal activity; or
    (ii) Any intentional identification of programs funded under the Act 
or recipient with any political activity.
    (k) None of the funds made available under the Act may be used to 
pay dues exceeding $100 per recipient per annum to any organization 
(other than a bar association), a purpose or function of which is to 
engage in activities prohibited under these regulations unless such dues 
are not used to engage in activities for which Older Americans Act funds 
cannot be used directly.



Sec. 1321.73  Grant related income under Title III-C.

    States and sub-grantees must require that their subgrantees' grant 
related income be used in either the matching or cost sharing 
alternative in 75.307(e)(3) or the additive alternative in Sec. 
75.307(e)(2) or a combination of the two. The deductive alternative 
described in Sec. 75.307(e)(1) is not permitted.

[53 FR 33766, Aug. 31, 1988, as amended at 81 FR 3022, Jan. 20, 2016]



Sec. 1321.75  Licenses and safety.

    The State shall ensure:
    (a) That, in making awards for multipurpose senior center 
activities, the area agency will ensure that the facility complies with 
all applicable State and local health, fire, safety, building, zoning 
and sanitation laws, ordinances or codes; and
    (b) The technical adequacy of any proposed alteration or renovation 
of a multipurpose senior center assisted under this part, by requiring 
that any alteration or renovation of a multipurpose senior center that 
affects the load bearing members of the facility is structurally sound 
and complies with all applicable local or State ordinances, laws, or 
building codes.

[[Page 163]]



             Subpart E_Hearing Procedures for State Agencies



Sec. 1321.77  Scope.

    (a) Hearing procedures for State plan disapproval, as provided for 
in section 307(c) and section 307(d) of the Act are subject to the 
previsions of 45 CFR part 213 with the following exceptions:
    (1) Section 213.1(a); Sec. 213.32(d); and Sec. 213.33 do not 
apply.
    (2) Reference to SRS Hearing Clerk shall be read to mean HHS Hearing 
Clerk.
    (3) References to Administrator shall be read to mean Commissioner 
on Aging.
    (b) Instead of the scope described in Sec. 213.1(a), this subpart 
governs the procedures and opportunity for a hearing on:
    (1) Disapproval of a State plan or amendment:
    (2) Determination that a State agency does not meet the requirements 
of this part:
    (3) Determination that there is a failure in the provisions or the 
administration of an approved plan to comply substantially with Federal 
requirements, including failure to comply with any assurance required 
under the Act or under this part.



Sec. 1321.79  When a decision is effective.

    (a) The Commissioner's decision specifies the effective date for 
AoA's reduction and withholding of the State's grant. This effective 
date may not be earlier than the date of the Commissioner's decision or 
later than the first day of the next calendar quarter.
    (b) The decision remains in effect unless reversed or stayed on 
judicial appeal, or until the agency or the plan is changed to meet all 
Federal requirements, except that the Commissioner may modify or set 
aside his or her decision before the record of the proceedings under 
this subpart is filed in court.



Sec. 1321.81  How the State may appeal.

    A State may appeal the final decision of the Commissioner 
disapproving the State plan or plan amendment, finding of noncompliance, 
or finding that a State agency does not meet the requirements of this 
part to the U.S. Court of Appeals for the circuit in which the State is 
located. The State shall file the appeal within 30 days of the 
Commissioner's final decision.



Sec. 1321.83  How the Commissioner may reallot the State's withheld
payments.

    The Commissioner disburses funds withheld from the State directly to 
any public or nonprofit private organization or agency, or political 
subdivision of the State that has the authority and capacity to carry 
out the functions of the State agency and submits a State plan which 
meets the requirements of this part and which contains an agreement to 
meet the non-federal share requirements.



PART 1322_GRANTS TO INDIAN TRIBES FOR SUPPORT AND NUTRITION SERVICES--
Table of Contents



Sec.
1322.1 Basis and purpose of this part.
1322.3 Definitions.
1322.5 Applicability of other regulations.
1322.7 Confidentiality and disclosure of information.
1322.9 Contributions.
1322.11 Prohibition against supplantation.
1322.13 Supportive services.
1322.15 Nutrition services.
1322.17 Access to information.
1322.19 Application requirements.
1322.21 Application approval.
1322.23 Hearing procedures.

    Authority: 42 U.S.C. 3001; Title VI, Part A of the Older Americans 
Act.

    Source: 53 FR 33774, Aug. 31, 1988, unless otherwise noted. 
Redesignated and amended at 81 FR 35645, June 3, 2016.



Sec. 1322.1  Basis and purpose of this part.

    This program was established to meet the unique needs and 
circumstances of American Indian elders on Indian reservations. This 
part implements title VI (part A) of the Older Americans Act, as 
amended, by establishing the requirements that an Indian tribal 
organization shall meet in order to receive a grant to promote the 
delivery of services for older Indians that are comparable to services 
provided under Title III. This part also

[[Page 164]]

prescribes application and hearing requirements and procedures for these 
grants.



Sec. 1322.3  Definitions.

    Acquiring, as used in section 307(a)(14) of the Act, means obtaining 
ownership of an existing facility in fee simple or by lease for 10 years 
or more for use as a multipurpose senior center.
    Altering or renovating, as used in section 307(a)(14) of the Act 
with respect to multipurpose senior centers, means making modifications 
to or in connection with an existing facility which are necessary for 
its effective use as a center. These may include renovation, repair, or 
expansion which is not in excess of double the square footage of the 
original facility and all physical improvements.
    Budgeting period, as used in Sec. 1322.19, means the intervals of 
time into which a period of assistance (project period) is divided for 
budgetary and funding purposes.
    Constructing, as used in section 307(a)(14) of the Act with respect 
to multipurpose senior centers, means building a new facility, including 
the costs of land acquisition and architectural and engineering fees, or 
making modifications to or in connection with an existing facility which 
are in excess of double the square footage of the original facility and 
all physical improvements.
    Department, means the Department of Health and Human Services.
    Indian reservation, means the reservation of any Federally 
recognized Indian tribe, including any band, nation, pueblo, or 
rancheria, any former reservation in Oklahoma, any community on non-
trust land under the jurisdiction of an Indian tribe, including a band, 
nation, pueblo, or rancheria, with allotted lands, or lands subject to a 
restriction against alienation imposed by the United States, and Alaskan 
Native regions established, pursuant to the Alaska Native Claims 
Settlement Act (84 Stat. 688).
    Indian tribe, means any Indian tribe, band, nation, or organized 
group or community, including any Alaska Native Village, regional or 
village corporation as defined in or established pursuant to the Alaska 
Native Claims Settlement Act (85 Stat. 688) which is recognized as 
eligible for the special programs and services provided by the United 
States to Indians because of their status as Indians (25 U.S.C. 450b).
    Means test, as used in the provision of services, means the use of 
an older Indian's income or resources to deny or limit that person's 
receipt of services under this part.
    Older Indians, means those individuals who have attained the minimum 
age determined by the tribe for services.
    Project period, as used in Sec. 1322.19, means the total time for 
which a project is approved for support, including any extensions.
    Service area, as used in Sec. 1322.9(b) and elsewhere in this part, 
means that geographic area approved by the Commissioner in which the 
tribal organization provides supportive and nutritional services to 
older Indians residing there. A service area may include all or part of 
the reservation or any portion of a county or counties which has a 
common boundary with the reservation. A service area may also include a 
non-contiguous area if the designation of such an area will further the 
purpose of the Act and will provide for more effective administration of 
the program by the tribal organization.
    Service provider, means any entity that is awarded a subgrant or 
contract from a tribal organization to provide services under this part.
    Tribal organization, as used in Sec. 1322.7 and elsewhere in this 
part, means the recognized governing body of any Indian tribe, or any 
legally established organization of Indians which is controlled, 
sanctioned or chartered by such governing body or which is 
democratically elected by the adult members of the Indian community to 
be served by such organization and which includes the maximum 
participation of Indians in all phases of its activities. Provided that 
in any case where a contract is let or grant made to an organization to 
perform services benefiting more than one Indian tribe, the approval of 
each Indian tribe shall be a prerequisite to the letting or making of 
the contract or grant (25 U.S.C. 450b).

[[Page 165]]



Sec. 1322.5  Applicability of other regulations.

    The following regulations in title 45 of the Code of Federal 
Regulations apply to all activities under this part:
    (a) Part 16--Procedures of the Departmental Grant Appeals Board;
    (b) [Reserved]
    (c) 45 CFR part 75--Uniform Administrative Requirements, Cost 
Principles, and Audit Requirements for HHS Awards.
    (d) 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;
    (e) Part 81--Practice and Procedure for Hearings under part 80 of 
this Title;
    (f) Part 84--Nondiscrimination on the Basis of Handicap in Programs 
and Activities Receiving Benefits from Federal Financial Participation; 
and
    (g) Part 91--Nondiscrimination on the Basis of Age in Programs or 
Activities Receiving Federal Financial Assistance from HHS.

[53 FR 33774, Aug. 31, 1988, as amended at 81 FR 3022, Jan. 20, 2016]



Sec. 1322.7  Confidentiality and disclosure of information.

    A tribal organization shall have confidentiality and disclosure 
procedures as follows:
    (a) A tribal organization shall have procedures to ensure that no 
information about an older Indian or obtained from an older Indian by 
any provider of services is disclosed by the provider of such services 
in a form that identifies the person without the informed consent of the 
person or of his or her legal representative, unless the disclosure is 
required by court order, or for program monitoring by authorized Federal 
or tribal monitoring agencies.
    (b) A tribal organization is not required to disclose those types of 
information or documents that are exempt from disclosure by a Federal 
agency under the Federal Freedom of Information Act, 5 U.S.C. 552.



Sec. 1322.9  Contributions.

    (a) Each tribal organization shall:
    (1) Provide each older Indian with a free and voluntary opportunity 
to contribute to the cost of the service;
    (2) Protect the privacy of each older Indian with respect to his or 
her contribution;
    (3) Establish appropriate procedures to safeguard and account for 
all contributions;
    (4) Use all services contributions to expand comprehensive and 
coordinated services systems supported under this part, while using 
nutrition services contributions only to expand services as provided 
under section 307(a)(13)(c)(ii) of the Act.
    (b) Each tribal organization may develop a suggested contribution 
schedule for services provided under this part. In developing a 
contribution schedule, the tribal organization shall consider the income 
ranges of older Indians in the service area and the tribal 
organization's other sources of income. However, means tests may not be 
used.
    (c) A tribal organization that receives funds under this part may 
not deny any older Indian a service because the older Indian will not or 
cannot contribute to the cost of the service.



Sec. 1322.11  Prohibition against supplantation.

    A tribal organization shall ensure that the activities provided 
under a grant under this part will be in addition to, and not in 
substitution for, comparable activities provided without Federal 
assistance.



Sec. 1322.13  Supportive services.

    (a) A tribal organization may provide any of the supportive services 
mentioned under title III of the Older Americans Act, and any other 
supportive services that are necessary for the general welfare of older 
Indians.
    (b) If an applicant elects to provide multipurpose senior center 
activities or uses any of the funds under this part for acquiring, 
altering or renovating a multipurpose senior center facility, it shall 
comply with the following requirements:
    (1) The tribal organization shall comply with all applicable local 
health, fire, safety, building, zoning and sanitation laws, ordinances 
or codes.
    (2) The tribal organization shall assure the technical adequacy of 
any proposed alteration or renovation of a multipurpose senior centers 
assisted

[[Page 166]]

under this part. The tribal organization assures technical adequacy by 
requiring that any alteration or renovation of a multipurpose senior 
center that affects the load bearing members of the facility is 
structurally sound and complies with all applicable local or State 
ordinances, laws, or building codes.
    (c) If an applicant elects to provide legal services, it shall 
substantially comply with the requirements in Sec. 1321.71 and legal 
services providers shall comply fully with the requirements in 
Sec. Sec. 1321.71(c) through 1321.71(p).



Sec. 1322.15  Nutrition services.

    (a) In addition to providing nutrition services to older Indians, a 
tribal organization may:
    (1) Provide nutrition services to the spouses of older Indians;
    (2) Provide nutrition services to non-elderly handicapped or 
disabled Indians who reside in housing facilities occupied primarily by 
the elderly, at which congregate nutrition services are provided;
    (3) Offer a meal, on the same basis as meals are provided to older 
Indians, to individuals providing volunteer services during meal hours; 
and
    (4) Provide a meal to individuals with disabilities who reside in a 
non-institutional household with and accompany a person eligible for 
congregate meals under that part.
    (b) Each tribal organization may receive cash payments in lieu of 
donated foods for all or any portion of its funding available under 
section 311(a)(4) of the Act. To receive cash or commodities, the tribal 
organization shall have an agreement with the U.S. Department of 
Agriculture's Food and Nutrition Service (FNS) to be a distributing 
agency.
    (c) Where applicable, the tribal organization shall work with 
agencies responsible for administering other programs to facilitate 
participation of older Indians.



Sec. 1322.17  Access to information.

    A tribal organization shall:
    (a) Establish or have a list of all services that are available to 
older Indians in the service area,
    (b) Maintain a list of services needed or requested by the older 
Indians; and
    (c) Provide assistance to older Indians to help them take advantage 
of available services.



Sec. 1322.19  Application requirements.

    A tribal organization shall have an approved application. The 
application shall be submitted as prescribed in section 604 of the Act 
and in accordance with the Commissioner's instructions for the specified 
project and budget periods. The application shall provide for:
    (a) Program objectives, as set forth in section 604(a)(5) of the 
Act, and any objectives established by the Commissioner.
    (b) A description of the geographic boundaries of the service area 
proposed by the tribal organization:
    (c) Documentation of the ability of the tribal organization to 
deliver supportive and nutrition services to older Indians, or 
documentation that the tribal organization has effectively administered 
supportive and nutrition services within the last 3 years;
    (d) Assurances as prescribed by the Commissioner that:
    (1) A tribal organization represents at least 50 individuals who 
have attained 60 years of age or older;
    (2) A tribal organization shall comply with all applicable State and 
local license and safety requirements for the provision of those 
services;
    (3) If a substantial number of the older Indians residing in the 
service area are of limited English-speaking ability, the tribal 
organization shall utilize the services of workers who are fluent in the 
language spoken by a predominant number of older Indians;
    (4) Procedures to ensure that all services under this part are 
provided without use of any means tests;
    (5) A tribal organization shall comply with all requirements set 
forth in Sec. 1322.7 through 1322.17; and
    (6) The services provided under this part will be coordinated, where 
applicable, with services provided under title III of the Act.
    (e) A tribal resolution(s) authorizing the tribal organization to 
apply for a grant under this part; and
    (f) Signature by the principal official of the tribe.

[[Page 167]]



Sec. 1322.21  Application approval.

    (a) Approval of any application under section 604(e) of the Act, 
shall not commit the Commissioner in any way to make additional, 
supplemental, continuation, or other awards with respect to any approved 
application or portion thereof.
    (b) The Commissioner may give first priority in awarding grants to 
grantees which have effectively administered such grants in the prior 
year.



Sec. 1322.23  Hearing procedures.

    In meeting the requirements of section 604(d)(3) of the Act, if the 
Commissioner disapproves an application from an eligible tribal 
organization, the tribal organization may file a written request for a 
hearing with the Commissioner.
    (a) The request shall be postmarked or delivered in person within 30 
days of the date of the disapproval notice. If it requests a hearing, 
the tribal organization shall submit to the Commissioner, as part of the 
request, a full written response to each objection specified in the 
notice of disapproval, including the pertinent facts and reasons in 
support of its response, and any and all documentation to support its 
position. Service of the request shall also be made on the individual(s) 
designated by the Commissioner to represent him or her.
    (b) The Administration on Aging shall have the opportunity to 
respond with 30 days to the merits of the tribal organization's request.
    (c) The Commissioner notifies the tribal organization in writing of 
the date, time and place for the hearing.
    (d) The hearing procedures include the right of the tribal 
organization to:
    (1) A hearing before the Commissioner or an official designated by 
the Commissioner;
    (2) Be heard in person or to be represented by counsel, at no 
expense to the Administration on Aging;
    (3) Present written evidence prior to and at the hearing, and 
present oral evidence at the hearing if the Commissioner or designated 
official decides that oral evidence is necessary for the proper 
resolution of the issues involved, and
    (4) Have the staff directly responsible for reviewing the 
application either present at the hearing, or have a deposition from the 
staff, whichever the Commissioner or designated official decides.
    (e) The Commissioner or designated official conducts a fair and 
impartial hearing, takes all necessary action to avoid delay and to 
maintain order and has all powers necessary to these ends.
    (f) Formal rules of evidence do not apply to the hearings.
    (g) The official hearing transcript together with all papers, 
documents, exhibits, and requests filed in the proceedings, including 
rulings, constitutes the record for decision.
    (h) After consideration of the record, the Commissoner or designated 
official issues a written decision, based on the record, which sets 
forth the reasons for the decision and the evidence on which it was 
based. The decision is issued within 60 days of the date of the hearing, 
constitutes the final administrative action on the matter and is 
promptly mailed to the tribal organization.
    (i) Either the tribal organization or the staff of the 
Administration on Aging may request for good cause an extension of any 
of the time limits specified in this section.



PART 1323_GRANTS FOR SUPPORTIVE AND NUTRITIONAL SERVICES TO OLDER HAWAIIAN
NATIVES--Table of Contents



Sec.
1323.1 Basis and purpose of this part.
1323.3 Definitions.
1323.5 Applicability of other regulations.
1323.7 Confidentiality and disclosure of information.
1323.9 Contributions.
1323.11 Prohibition against supplantation.
1323.13 Supportive services.
1323.15 Nutrition services.
1323.17 Access to information.
1323.19 Application requirements.
1323.21 Application approval.
1323.23 Hearing procedures.

    Authority: 42 U.S.C. 3001; Title VI Part B of the Older Americans 
Act.

    Source: 53 FR 33777, Aug. 31, 1988, unless otherwise noted. 
Redesignated and amended at 81 FR 35645, 35646, June 3, 2016

[[Page 168]]



Sec. 1323.1  Basis and purpose of this part.

    This program was established to meet the unique needs and 
circumstances of Older Hawaiian Natives. This part implements title VI 
(part B) of the Older Americans Act, as amended, by establishing the 
requirements that a public or nonprofit private organization shall meet 
in order to receive a grant to promote the delivery of services for 
older Hawaiian Natives that are comparable to services provided under 
title III. This part also prescribes application and hearing 
requirements and procedures for these agrants.



Sec. 1323.3  Definitions.

    Acquiring, as used in section 307(a)(14) of the Act, means obtaining 
ownership of an existing facility in fee simple or by lease of 10 years 
or more for use as a multipurpose senior center.
    Act, means the Older Americans Act of 1965, as amended.
    Altering or renovating, as used in section 307(a)(14) of the Act 
with respect to multipurpose senior centers, means making modifications 
to or in connection with an existing facility which are necessary for 
its effective use as a center. These may include renovation, repair, or 
expansion which is not in excess of double the square footage of the 
original facility and all physical improvements.
    Budgeting period, as used in Sec. 1323.19, means the intervals of 
time into which a period of assistance (project period) is divided for 
budgetary and funding purposes.
    Constructing, as used in section 307(a)(14) of the Act with respect 
to multipurpose senior centers, means building a new facility, including 
the costs of land acquisition and architectural and engineering fees, or 
making modificaitons to or in connection with an existing facility which 
are in excess of double the square footage of the original facility and 
all physical improvements.
    Department, means the Department of Health and Human Services.
    Eligible organization, means a public or nonprofit private 
organization having the capacity to provide services under this part for 
older Hawaiian Natives.
    Grantee, as used in this part, means an eligible organization that 
has received funds to provide services to older Hawaiians.
    Hawaiian Native, as used in this part, means any individual any of 
whose ancestors were native of the area which consists of the Hawaiian 
Islands prior to 1778.
    Means test, as used in the provision of services, means the use of 
an older Hawaiian Native's income or resources to deny or limit that 
person receipt of services under this part.
    Older Hawaiian, means any individual, age 60 or over, who is an 
Hawaiian Native.
    Project period, as used in Sec. 1323.19, means the total time for 
which a project is approved for support, including any extensions.
    Service area, as used in Sec. 1323.9(b) and elsewhere in this part, 
means that geographic area approved by the Commissioner in which the 
grantee provides supportive and nutritional services to older Hawaiian 
Natives residing there.



Sec. 1323.5  Applicability of other regulations.

    The following regulations in title 45 of the Code of Federal 
Regulations apply to all activities under this part:
    (a) Part 16-Procedures of the Departmental Grant Appeals Board;
    (b) [Reserved]
    (c) 45 CFR part 75--Uniform Administrative Requirements, Cost 
Principles, and Audit Requirements for HHS Awards.
    (d) 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;
    (e) Part 81-Practice and procedures for hearings under part 80;
    (f) Part 84-Nondiscrimination on the Basis of Handicap in Programs 
and Activities Receiving Benefits from Federal Financing Participation; 
and
    (g) Part 91-Nondiscrimination on the Basis of Age in Programs or 
Activities Receiving Federal Financial Assistance from HHS.

[53 FR 33777, Aug. 31, 1988, as amended at 81 FR 3022, Jan. 20, 2016]

[[Page 169]]



Sec. 1323.7  Confidentiality and disclosure of information.

    A grantee shall have confidentiality and disclosure procedures as 
follows:
    (a) The grantee shall have procedures to ensure that no information 
about an older Hawaiian Native or obtained from an older Hawaiian Native 
is disclosed in a form that identifies the person without the informed 
consent of the person or of his or her legal representative, unless the 
disclosure is required by court order, or for program monitoring by 
authorized Federal monitoring agencies.
    (b) A grantee is not required to disclose those types of information 
or documents that are exempt from disclosure by a Federal agency under 
the Federal Freedom of Information Act, 5 U.S.C. 552.



Sec. 1323.9  Contributions.

    (a) Each grantee shall:
    (1) Provide each older Hawaiian Native with a free and voluntary 
opportunity to contribute to the cost of the service;
    (2) Protect the privacy of each older Hawaiian Native with respect 
to his or her contribution;
    (3) Establish appropriate procedures to safeguard and account for 
all contributions;
    (4) Use all supportive services contributions to expand the services 
provided under this part; and
    (5) Use all nutrition services contributions only to expand services 
as provided under section 307(a)(13)(c)(ii) of the Act.
    (b) Each grantee may develop a suggested contribution schedule for 
services provided under this part. In developing a contribution 
schedule, the grantee shall consider the income ranges of older Hawaiian 
Natives in the service area and the grantee's other sources of income. 
However, means tests may not be used.
    (c) A grantee may not deny any older Hawaiian a service because the 
older Hawaiian will not or cannot contribute to the cost of the service.



Sec. 1323.11  Prohibition against supplantation.

    A grantee shall ensure that the activities provided under a grant 
under this part will be in addition to, and not in substitution for, 
comparable activities provided without Federal assistance.



Sec. 1323.13  Supportive services.

    (a) A grantee may provide any of the supportive services specified 
under title III of the Older Americans Act and any other supportive 
services, approved in the grantee's application, that are necessary for 
the general welfare of older Hawaiian Natives.
    (b) If a grantee elects to provide multipurpose senior center 
activities or uses any of the funds under this part for acquiring, 
altering or renovating a multipurpose senior center facility, it shall 
comply with the following requirements:
    (1) The grantee shall comply with all applicable local health, fire, 
safety, building, zoning and sanitation laws, ordinances or codes.
    (2) The grantee shall assure the technical adequacy of any proposed 
alteration or renovation of a multipurpose senior center assisted under 
this part. The grantee shall assure technical adequacy by requiring that 
any alteration or renovation of a multipurpose senior center that 
affects the load bearing members of the facility is structurally sound 
and complies with all applicable local or State ordinances, laws, or 
building codes.
    (c) If a grantee elects to provide legal services, it shall 
substantially comply with the requirements in Sec. 1321.71 and legal 
services providers shall comply fully with the requirements in 
Sec. Sec. 1321.71(c) through 1321.71(p).



Sec. 1323.15  Nutrition services.

    (a) In addition to providing nutrition services to older Hawaiian 
Natives, a grantee may:
    (1) Provide nutrition services to the spouses of older Hawaiian 
Natives;
    (2) Provide nutrition services to non-elderly handicapped or 
disabled Hawaiian Natives who reside in housing facilities occupied 
primarily by the elderly, at which congregate nutrition services are 
provided;
    (3) Offer a meal, on the same basis as meals are provided to older 
Hawaiian Natives, to individuals providing volunteer services during 
meal hours; and

[[Page 170]]

    (4) Provide a meal to individuals with disabilities who reside in a 
non-institutional household with and accompany a person eligible for 
congregate meals under that part.
    (b) Each grantee may receive cash payments in lieu of donated foods 
for all or any portion of its funding available under section 311(a)(4) 
of the Act. To receive cash or commodities, the grantee shall have an 
agreement with the U.S. Department of Agriculture's Food and Nutrition 
Service (FNS) to be a distributing agency.
    (c) Where applicable, the grantee shall work with agencies 
responsible for administering other programs to facilitate participation 
of older Hawaiian Natives.



Sec. 1323.17  Access to information.

    A grantee shall:
    (a) Establish or have a list of all services that are available to 
older Hawaiian Natives in the service area;
    (b) Maintain a list of services needed or requested by the older 
Hawaiians; and
    (c) Provide assistance to older Hawaiian Natives to help them take 
advantage of available services.



Sec. 1323.19  Application requirements.

    To receive funds under this part, an eligible organization shall 
submit an application as prescribed in section 623 of the Act and in 
accordance with the Commissioner's instructions for the specified 
project and budget periods. The application shall provide for:
    (a) Program objectives, as set forth in section 623(a)(6) of the 
Act, and any objectives established by the Commissioner;
    (b) A description of the geographic boundaries of the service area 
proposed by the eligible organization;
    (c) Documentation of the organization's ability to serve older 
Hawaiian Natives;
    (d) Assurances as prescribed by the Commissioner that:
    (1) The eligible organization represents at least 50 older Hawaiian 
Natives who have attained 60 years of age or older;
    (2) The eligible organization shall conduct all activities on behalf 
of older Hawaiian natives in close coordination with the State agency 
and Area Agency on Aging:
    (3) The eligible organization shall comply with all applicable State 
and local license and safety requirements for the provision of those 
services;
    (4) The eligible organization shall ensure that all services under 
this part are provided without use of any means tests;
    (5) The eligible organization shall comply with all requirements set 
forth in Sec. Sec. 1323.7 through 1323.17; and
    (6) The services provided under this part will be coordinated, where 
applicable, with services provided under title III of the Act.
    (e) Signature by the principal official of the eligible 
organization.



Sec. 1323.21  Application approval.

    (a) Approval of any application under section 623(d) of the Act, 
shall not commit the Commissioner in any way to make additional, 
supplemental, continuation, or other awards with respect to any approved 
application or portion thereof.
    (b) The Commissioner may give first priority in awarding grants to 
eligible applicant organizations that have prior experience in serving 
Hawaiian Natives, particularly older Hawaiian Natives.



Sec. 1323.23  Hearing procedures.

    In accordance with section 623(c)(3) of the Act, if the Commissioner 
disapproves an application from an eligible organization, the 
organization may file a written request for a hearing with the 
Commissioner.
    (a) The request shall be postmarked or delivered in person within 30 
days of the date of the disapproval notice. If it requests a hearing, 
the organization shall submit to the Commissioner, as part of the 
request, a full written response to each objection specified in the 
notice of disapproval, including the pertinent facts and reasons in 
support of its response, and any and all documentation to support its 
position. Service of the request shall also be made on the individual(s) 
designated by the Commissioner to represent him or her.
    (b) The Administration on Aging shall have the opportunity to 
respond

[[Page 171]]

within 30 days to the merits of the organization's request.
    (c) The Commissioner notifies the organization in writing of the 
date, time and place for the hearing.
    (d) The hearing procedures include the right of the organization to:
    (1) A hearing before the Commissioner or an official designated by 
the Commissioner;
    (2) Be heard in person or to be represented by counsel, at no 
expense to the Administration on Aging;
    (3) Present written evidence prior to and at the hearing, and 
present oral evidence at the hearing if the Commissioner or the 
Commissioner's designee decides that oral evidence is necessary for the 
proper resolution of the issues involved, and
    (4) Have the staff directly responsible for reviewing the 
application either present at the hearing, or have a deposition from the 
staff, whichever the Commissioner or the Commissioner's designee 
decides.
    (e) The Commissioner or the Commissioner's designee conducts a fair 
and impartial hearing, takes all necessary action to avoid delay and to 
maintain order and has all powers necessary to these ends.
    (f) Formal rules of evidence do not apply to the hearings.
    (g) The official hearing transcript together with all papers 
documents, exhibits, and requests filed in the proceedings, including 
rulings, constitutes the record for decision.
    (h) After consideration of the record, the Commissioner or the 
Commissioner's designee issues a written decision, based on the record, 
which sets forth the reasons for the decision and the evidence on which 
it was based. The decision is issued within 60 days of the date of the 
hearing, constitutes the final administrative action on the matter and 
is promptly mailed to the organization.
    (i) Either the organization or the staff of the Administration on 
Aging may request, for good cause, an extension of any of the time 
limits specified in this section.



PART 1324_ALLOTMENTS FOR VULNERABLE ELDER RIGHTS PROTECTION ACTIVITIES
--Table of Contents



            Subpart A_State Long-Term Care Ombudsman Program

Sec.
1324.1 Definitions.
1324.11 Establishment of the Office of the State Long-Term Care 
          Ombudsman.
1324.13 Functions and responsibilities of the State Long-Term Care 
          Ombudsman.
1324.15 State agency responsibilities related to the Ombudsman program.
1324.17 Responsibilities of agencies hosting local Ombudsman entities.
1324.19 Duties of the representatives of the Office.
1324.21 Conflicts of interest.

Subpart B [Reserved]

    Authority: 42 U.S.C. 3001 et seq.

    Source: 80 FR 7758, Feb. 11, 2015, unless otherwise noted. 
Redesignated and amended at 81 FR 35645, 35646, June 3, 2016



            Subpart A_State Long-Term Care Ombudsman Program



Sec. 1324.1  Definitions.

    The following definitions apply to this part:
    Immediate family, pertaining to conflicts of interest as used in 
section 712 of the Act, means a member of the household or a relative 
with whom there is a close personal or significant financial 
relationship.
    Office of the State Long-Term Care Ombudsman, as used in sections 
711 and 712 of the Act, means the organizational unit in a State or 
territory which is headed by a State Long-Term Care Ombudsman.
    Representatives of the Office of the State Long-Term Care Ombudsman, 
as used in sections 711 and 712 of the Act, means the employees or 
volunteers designated by the Ombudsman to fulfill the duties set forth 
in Sec. 1324.19(a), whether personnel supervision is provided by the 
Ombudsman or his or her designees or by an agency hosting a local 
Ombudsman entity designated by the Ombudsman pursuant to section 
712(a)(5) of the Act.
    Resident representative means any of the following:

[[Page 172]]

    (1) An individual chosen by the resident to act on behalf of the 
resident in order to support the resident in decision-making; access 
medical, social or other personal information of the resident; manage 
financial matters; or receive notifications;
    (2) A person authorized by State or Federal law (including but not 
limited to agents under power of attorney, representative payees, and 
other fiduciaries) to act on behalf of the resident in order to support 
the resident in decision-making; access medical, social or other 
personal information of the resident; manage financial matters; or 
receive notifications;
    (3) Legal representative, as used in section 712 of the Act; or
    (4) The court-appointed guardian or conservator of a resident.
    (5) Nothing in this rule is intended to expand the scope of 
authority of any resident representative beyond that authority 
specifically authorized by the resident, State or Federal law, or a 
court of competent jurisdiction.
    State Long-Term Care Ombudsman, or Ombudsman, as used in sections 
711 and 712 of the Act, means the individual who heads the Office and is 
responsible to personally, or through representatives of the Office, 
fulfill the functions, responsibilities and duties set forth in 
Sec. Sec. 1324.13 and 1324.19.
    State Long-Term Care Ombudsman program, Ombudsman program, or 
program, as used in sections 711 and 712 of the Act, means the program 
through which the functions and duties of the Office are carried out, 
consisting of the Ombudsman, the Office headed by the Ombudsman, and the 
representatives of the Office.
    Willful interference means actions or inactions taken by an 
individual in an attempt to intentionally prevent, interfere with, or 
attempt to impede the Ombudsman from performing any of the functions or 
responsibilities set forth in Sec. 1324.13, or the Ombudsman or a 
representative of the Office from performing any of the duties set forth 
in Sec. 1324.19.



Sec. 1324.11  Establishment of the Office of the State Long-Term
Care Ombudsman.

    (a) The Office of the State Long-Term Care Ombudsman shall be an 
entity which shall be headed by the State Long-Term Care Ombudsman, who 
shall carry out all of the functions and responsibilities set forth in 
Sec. 1324.13 and shall carry out, directly and/or through local 
Ombudsman entities, the duties set forth in Sec. 1324.19.
    (b) The State agency shall establish the Office and, thereby carry 
out the Long-Term Care Ombudsman program in any of the following ways:
    (1) The Office is a distinct entity, separately identifiable, and 
located within or connected to the State agency; or
    (2) The State agency enters into a contract or other arrangement 
with any public agency or nonprofit organization which shall establish a 
separately identifiable, distinct entity as the Office.
    (c) The State agency shall require that the Ombudsman serve on a 
full-time basis. In providing leadership and management of the Office, 
the functions, responsibilities, and duties, as set forth in Sec. Sec. 
1324.13 and 1324.19 are to constitute the entirety of the Ombudsman's 
work. The State agency or other agency carrying out the Office shall not 
require or request the Ombudsman to be responsible for leading, managing 
or performing the work of non-ombudsman services or programs except on a 
time-limited, intermittent basis.
    (1) This provision does not limit the authority of the Ombudsman 
program to provide ombudsman services to populations other than 
residents of long-term care facilities so long as the appropriations 
under the Act are utilized to serve residents of long-term care 
facilities, as authorized by the Act.
    (2) [Reserved]
    (d) The State agency, and other entity selecting the Ombudsman, if 
applicable, shall ensure that the Ombudsman meets minimum qualifications 
which shall include, but not be limited to, demonstrated expertise in:
    (1) Long-term services and supports or other direct services for 
older persons or individuals with disabilities;

[[Page 173]]

    (2) Consumer-oriented public policy advocacy;
    (3) Leadership and program management skills; and
    (4) Negotiation and problem resolution skills.
    (e) Policies and procedures. Where the Ombudsman has the legal 
authority to do so, he or she shall establish policies and procedures, 
in consultation with the State agency, to carry out the Ombudsman 
program in accordance with the Act. Where State law does not provide the 
Ombudsman with legal authority to establish policies and procedures, the 
Ombudsman shall recommend policies and procedures to the State agency or 
other agency in which the Office is organizationally located, and such 
agency shall establish Ombudsman program policies and procedures. Where 
local Ombudsman entities are designated within area agencies on aging or 
other entities, the Ombudsman and/or appropriate agency shall develop 
such policies and procedures in consultation with the agencies hosting 
local Ombudsman entities and with representatives of the Office. The 
policies and procedures must address the matters within this subsection.
    (1) Program administration. Policies and procedures regarding 
program administration must include, but not be limited to:
    (i) A requirement that the agency in which the Office is 
organizationally located must not have personnel policies or practices 
which prohibit the Ombudsman from performing the functions and 
responsibilities of the Ombudsman, as set forth in Sec. 1324.13, or 
from adhering to the requirements of section 712 of the Act. Nothing in 
this provision shall prohibit such agency from requiring that the 
Ombudsman, or other employees or volunteers of the Office, adhere to the 
personnel policies and procedures of the entity which are otherwise 
lawful.
    (ii) A requirement that an agency hosting a local Ombudsman entity 
must not have personnel policies or practices which prohibit a 
representative of the Office from performing the duties of the Ombudsman 
program or from adhering to the requirements of section 712 of the Act. 
Nothing in this provision shall prohibit such agency from requiring that 
representatives of the Office adhere to the personnel policies and 
procedures of the host agency which are otherwise lawful.
    (iii) A requirement that the Ombudsman shall monitor the performance 
of local Ombudsman entities which the Ombudsman has designated to carry 
out the duties of the Office.
    (iv) A description of the process by which the agencies hosting 
local Ombudsman entities will coordinate with the Ombudsman in the 
employment or appointment of representatives of the Office.
    (v) Standards to assure prompt response to complaints by the Office 
and/or local Ombudsman entities which prioritize abuse, neglect, 
exploitation and time-sensitive complaints and which consider the 
severity of the risk to the resident, the imminence of the threat of 
harm to the resident, and the opportunity for mitigating harm to the 
resident through provision of Ombudsman program services.
    (vi) Procedures that clarify appropriate fiscal responsibilities of 
the local Ombudsman entity, including but not limited to clarifications 
regarding access to programmatic fiscal information by appropriate 
representatives of the Office.
    (2) Procedures for access. Policies and procedures regarding timely 
access to facilities, residents, and appropriate records (regardless of 
format and including, upon request, copies of such records) by the 
Ombudsman and representatives of the Office must include, but not be 
limited to:
    (i) Access to enter all long-term care facilities at any time during 
a facility's regular business hours or regular visiting hours, and at 
any other time when access may be required by the circumstances to be 
investigated;
    (ii) Access to all residents to perform the functions and duties set 
forth in Sec. Sec. 1324.13 and 1324.19;
    (iii) Access to the name and contact information of the resident 
representative, if any, where needed to perform the functions and duties 
set forth in Sec. Sec. 1324.13 and 1324.19;
    (iv) Access to review the medical, social and other records relating 
to a resident, if--

[[Page 174]]

    (A) The resident or resident representative communicates informed 
consent to the access and the consent is given in writing or through the 
use of auxiliary aids and services;
    (B) The resident or resident representative communicates informed 
consent orally, visually, or through the use of auxiliary aids and 
services, and such consent is documented contemporaneously by a 
representative of the Office in accordance with such procedures; and
    (C) Access is necessary in order to investigate a complaint, the 
resident representative refuses to consent to the access, a 
representative of the Office has reasonable cause to believe that the 
resident representative is not acting in the best interests of the 
resident, and the representative of the Office obtains the approval of 
the Ombudsman;
    (v) Access to the administrative records, policies, and documents, 
to which the residents have, or the general public has access, of long-
term care facilities;
    (vi) Access of the Ombudsman to, and, upon request, copies of all 
licensing and certification records maintained by the State with respect 
to long-term care facilities; and
    (vii) Reaffirmation that the Health Insurance Portability and 
Accountability Act of 1996 (HIPAA) Privacy Rule, 45 CFR part 160 and 45 
CFR part 164, subparts A and E, does not preclude release by covered 
entities of resident private health information or other resident 
identifying information to the Ombudsman program, including but not 
limited to residents' medical, social, or other records, a list of 
resident names and room numbers, or information collected in the course 
of a State or Federal survey or inspection process.
    (3) Disclosure. Policies and procedures regarding disclosure of 
files, records and other information maintained by the Ombudsman program 
must include, but not be limited to:
    (i) Provision that the files, records, and information maintained by 
the Ombudsman program may be disclosed only at the discretion of the 
Ombudsman or designee of the Ombudsman for such purpose and in 
accordance with the criteria developed by the Ombudsman, as required by 
Sec. 1327.13(e);
    (ii) Prohibition of the disclosure of identifying information of any 
resident with respect to whom the Ombudsman program maintains files, 
records, or information, except as otherwise provided by Sec. 
1327.19(b)(5) through (8), unless:
    (A) The resident or the resident representative communicates 
informed consent to the disclosure and the consent is given in writing 
or through the use of auxiliary aids and services;
    (B) The resident or resident representative communicates informed 
consent orally, visually, or through the use of auxiliary aids and 
services and such consent is documented contemporaneously by a 
representative of the Office in accordance with such procedures; or
    (C) The disclosure is required by court order;
    (iii) Prohibition of the disclosure of identifying information of 
any complainant with respect to whom the Ombudsman program maintains 
files, records, or information, unless:
    (A) The complainant communicates informed consent to the disclosure 
and the consent is given in writing or through the use of auxiliary aids 
and services;
    (B) The complainant communicates informed consent orally, visually, 
or through the use of auxiliary aids and services and such consent is 
documented contemporaneously by a representative of the Office in 
accordance with such procedures; or
    (C) The disclosure is required by court order;
    (iv) Exclusion of the Ombudsman and representatives of the Office 
from abuse reporting requirements, including when such reporting would 
disclose identifying information of a complainant or resident without 
appropriate consent or court order, except as otherwise provided in 
Sec. 1327.19(b)(5) through (8); and
    (v) Adherence to the provisions of paragraph (e)(3) of this section, 
regardless of the source of the request for information or the source of 
funding for the services of the Ombudsman program, notwithstanding 
section 705(a)(6)(c) of the Act.

[[Page 175]]

    (4) Conflicts of interest. Policies and procedures regarding 
conflicts of interest must establish mechanisms to identify and remove 
or remedy conflicts of interest as provided in Sec. 1324.21, including:
    (i) Ensuring that no individual, or member of the immediate family 
of an individual, involved in the employment or appointment of the 
Ombudsman is subject to a conflict of interest;
    (ii) Requiring that other agencies in which the Office or local 
Ombudsman entities are organizationally located have policies in place 
to prohibit the employment or appointment of an Ombudsman or 
representatives of the Office with a conflict that cannot be adequately 
removed or remedied;
    (iii) Requiring that the Ombudsman take reasonable steps to refuse, 
suspend or remove designation of an individual who has a conflict of 
interest, or who has a member of the immediate family with a conflict of 
interest, which cannot be adequately removed or remedied;
    (iv) Establishing the methods by which the Office and/or State 
agency will periodically review and identify conflicts of the Ombudsman 
and representatives of the Office; and
    (v) Establishing the actions the Office and/or State agency will 
require the Ombudsman or representatives of the Office to take in order 
to remedy or remove such conflicts.
    (5) Systems advocacy. Policies and procedures related to systems 
advocacy must assure that the Office is required and has sufficient 
authority to carry out its responsibility to analyze, comment on, and 
monitor the development and implementation of Federal, State, and local 
laws, regulations, and other government policies and actions that 
pertain to long-term care facilities and services and to the health, 
safety, welfare, and rights of residents, and to recommend any changes 
in such laws, regulations, and policies as the Office determines to be 
appropriate.
    (i) Such procedures must exclude the Ombudsman and representatives 
of the Office from any State lobbying prohibitions to the extent that 
such requirements are inconsistent with section 712 of the Act.
    (ii) Nothing in this part shall prohibit the Ombudsman or the State 
agency or other agency in which the Office is organizationally located 
from establishing policies which promote consultation regarding the 
determinations of the Office related to recommended changes in laws, 
regulations, and policies. However, such a policy shall not require a 
right to review or pre-approve positions or communications of the 
Office.
    (6) Designation. Policies and procedures related to designation must 
establish the criteria and process by which the Ombudsman shall 
designate and refuse, suspend or remove designation of local Ombudsman 
entities and representatives of the Office.
    (i) Such criteria should include, but not be limited to, the 
authority to refuse, suspend or remove designation a local Ombudsman 
entity or representative of the Office in situations in which an 
identified conflict of interest cannot be adequately removed or remedied 
as set forth in Sec. 1327.21.
    (ii) [Reserved]
    (7) Grievance process. Policies and procedures related to grievances 
must establish a grievance process for the receipt and review of 
grievances regarding the determinations or actions of the Ombudsman and 
representatives of the Office.
    (i) Such process shall include an opportunity for reconsideration of 
the Ombudsman decision to refuse, suspend, or remove designation of a 
local Ombudsman entity or representative of the Office. Notwithstanding 
the grievance process, the Ombudsman shall make the final determination 
to designate or to refuse, suspend, or remove designation of a local 
Ombudsman entity or representative of the Office.
    (ii) [Reserved]
    (8) Determinations of the Office. Policies and procedures related to 
the determinations of the Office must ensure that the Ombudsman, as head 
of the Office, shall be able to independently make determinations and 
establish positions of the Office, without necessarily representing the 
determinations or positions of the State agency or other agency in which 
the Office is organizationally located, regarding:

[[Page 176]]

    (i) Disclosure of information maintained by the Ombudsman program 
within the limitations set forth in section 712(d) of the Act;
    (ii) Recommendations to changes in Federal, State and local laws, 
regulations, policies and actions pertaining to the health, safety, 
welfare, and rights of residents; and
    (iii) Provision of information to public and private agencies, 
legislators, the media, and other persons, regarding the problems and 
concerns of residents and recommendations related to the problems and 
concerns.



Sec. 1324.13  Functions and responsibilities of the State Long-Term
Care Ombudsman.

    The Ombudsman, as head of the Office, shall have responsibility for 
the leadership and management of the Office in coordination with the 
State agency, and, where applicable, any other agency carrying out the 
Ombudsman program, as follows.
    (a) Functions. The Ombudsman shall, personally or through 
representatives of the Office--
    (1) Identify, investigate, and resolve complaints that--
    (i) Are made by, or on behalf of, residents; and
    (ii) Relate to action, inaction, or decisions, that may adversely 
affect the health, safety, welfare, or rights of residents (including 
the welfare and rights of residents with respect to the appointment and 
activities of resident representatives) of--
    (A) Providers, or representatives of providers, of long-term care;
    (B) Public agencies; or
    (C) Health and social service agencies.
    (2) Provide services to protect the health, safety, welfare, and 
rights of the residents;
    (3) Inform residents about means of obtaining services provided by 
the Ombudsman program;
    (4) Ensure that residents have regular and timely access to the 
services provided through the Ombudsman program and that residents and 
complainants receive timely responses from representatives of the Office 
to requests for information and complaints;
    (5) Represent the interests of residents before governmental 
agencies, assure that individual residents have access to, and pursue 
(as the Ombudsman determines as necessary and consistent with resident 
interests) administrative, legal, and other remedies to protect the 
health, safety, welfare, and rights of residents;
    (6) Provide administrative and technical assistance to 
representatives of the Office and agencies hosting local Ombudsman 
entities;
    (7)(i) Analyze, comment on, and monitor the development and 
implementation of Federal, State, and local laws, regulations, and other 
governmental policies and actions, that pertain to the health, safety, 
welfare, and rights of the residents, with respect to the adequacy of 
long-term care facilities and services in the State;
    (ii) Recommend any changes in such laws, regulations, policies, and 
actions as the Office determines to be appropriate; and
    (iii) Facilitate public comment on the laws, regulations, policies, 
and actions;
    (iv) Provide leadership to statewide systems advocacy efforts of the 
Office on behalf of long-term care facility residents, including 
coordination of systems advocacy efforts carried out by representatives 
of the Office; and
    (v) Provide information to public and private agencies, legislators, 
the media, and other persons, regarding the problems and concerns of 
residents and recommendations related to the problems and concerns.
    (vi) Such determinations and positions shall be those of the Office 
and shall not necessarily represent the determinations or positions of 
the State agency or other agency in which the Office is organizationally 
located.
    (vii) In carrying out systems advocacy efforts of the Office on 
behalf of long-term care facility residents and pursuant to the receipt 
of grant funds under the Act, the provision of information, 
recommendations of changes of laws to legislators, and recommendations 
of changes of regulations and policies to government agencies by the 
Ombudsman or representatives of the Office do not constitute

[[Page 177]]

lobbying activities as defined by 45 CFR part 93.
    (8) Coordinate with and promote the development of citizen 
organizations consistent with the interests of residents; and
    (9) Promote, provide technical support for the development of, and 
provide ongoing support as requested by resident and family councils to 
protect the well-being and rights of residents; and
    (b) The Ombudsman shall be the head of a unified statewide program 
and shall:
    (1) Establish or recommend policies, procedures and standards for 
administration of the Ombudsman program pursuant to Sec. 1324.11(e);
    (2) Require representatives of the Office to fulfill the duties set 
forth in Sec. 1324.19 in accordance with Ombudsman program policies and 
procedures.
    (c) Designation. The Ombudsman shall determine designation, and 
refusal, suspension, or removal of designation, of local Ombudsman 
entities and representatives of the Office pursuant to section 712(a)(5) 
of the Act and the policies and procedures set forth in Sec. 
1324.11(e)(6).
    (1) Where an Ombudsman chooses to designate local Ombudsman 
entities, the Ombudsman shall:
    (i) Designate local Ombudsman entities to be organizationally 
located within public or non-profit private entities;
    (ii) Review and approve plans or contracts governing local Ombudsman 
entity operations, including, where applicable, through area agency on 
aging plans, in coordination with the State agency; and
    (iii) Monitor, on a regular basis, the Ombudsman program performance 
of local Ombudsman entities.
    (2) Training requirements. The Ombudsman shall establish procedures 
for training for certification and continuing education of the 
representatives of the Office, based on model standards established by 
the Director of the Office of Long-Term Care Ombudsman Programs as 
described in section 201(d) of the Act, in consultation with residents, 
resident representatives, citizen organizations, long-term care 
providers, and the State agency, that--
    (i) Specify a minimum number of hours of initial training;
    (ii) Specify the content of the training, including training 
relating to Federal, State, and local laws, regulations, and policies, 
with respect to long-term care facilities in the State; investigative 
and resolution techniques; and such other matters as the Office 
determines to be appropriate; and
    (iii) Specify an annual number of hours of in-service training for 
all representatives of the Office;
    (3) Prohibit any representative of the Office from carrying out the 
duties described in Sec. 1324.19 unless the representative--
    (i) Has received the training required under paragraph (c)(2) of 
this section or is performing such duties under supervision of the 
Ombudsman or a designated representative of the Office as part of 
certification training requirements; and
    (ii) Has been approved by the Ombudsman as qualified to carry out 
the activity on behalf of the Office;
    (4) The Ombudsman shall investigate allegations of misconduct by 
representatives of the Office in the performance of Ombudsman program 
duties and, as applicable, coordinate such investigations with the State 
agency in which the Office is organizationally located, agency hosting 
the local Ombudsman entity and/or the local Ombudsman entity.
    (5) Policies, procedures, or practices which the Ombudsman 
determines to be in conflict with the laws, policies, or procedures 
governing the Ombudsman program shall be sufficient grounds for refusal, 
suspension, or removal of designation of the representative of the 
Office and/or the local Ombudsman entity.
    (d) Ombudsman program information. The Ombudsman shall manage the 
files, records, and other information of the Ombudsman program, whether 
in physical, electronic, or other formats, including information 
maintained by representatives of the Office and local Ombudsman entities 
pertaining to the cases and activities of the Ombudsman program. Such 
files, records, and other

[[Page 178]]

information are the property of the Office. Nothing in this provision 
shall prohibit a representative of the Office or a local Ombudsman 
entity from maintaining such information in accordance with Ombudsman 
program requirements.
    (e) Disclosure. In making determinations regarding the disclosure of 
files, records and other information maintained by the Ombudsman 
program, the Ombudsman shall:
    (1) Have the sole authority to make or delegate determinations 
concerning the disclosure of the files, records, and other information 
maintained by the Ombudsman program. The Ombudsman shall comply with 
section 712(d) of the Act in responding to requests for disclosure of 
files, records, and other information, regardless of the format of such 
file, record, or other information, the source of the request, and the 
sources of funding to the Ombudsman program;
    (2) Develop and adhere to criteria to guide the Ombudsman's 
discretion in determining whether to disclose the files, records or 
other information of the Office; and
    (3) Develop and adhere to a process for the appropriate disclosure 
of information maintained by the Office, including:
    (i) Classification of at least the following types of files, 
records, and information: medical, social and other records of 
residents; administrative records, policies, and documents of long-term 
care facilities; licensing and certification records maintained by the 
State with respect to long-term care facilities; and data collected in 
the Ombudsman program reporting system; and
    (ii) Identification of the appropriate individual designee or 
category of designee, if other than the Ombudsman, authorized to 
determine the disclosure of specific categories of information in 
accordance with the criteria described in paragraph (e) of this section.
    (f) Fiscal management. The Ombudsman shall determine the use of the 
fiscal resources appropriated or otherwise available for the operation 
of the Office. Where local Ombudsman entities are designated, the 
Ombudsman shall approve the allocations of Federal and State funds 
provided to such entities, subject to applicable Federal and State laws 
and policies. The Ombudsman shall determine that program budgets and 
expenditures of the Office and local Ombudsman entities are consistent 
with laws, policies and procedures governing the Ombudsman program.
    (g) Annual report. The Ombudsman shall independently develop and 
provide final approval of an annual report as set forth in section 
712(h)(1) of the Act and as otherwise required by the Assistant 
Secretary.
    (1) Such report shall:
    (i) Describe the activities carried out by the Office in the year 
for which the report is prepared;
    (ii) Contain analysis of Ombudsman program data;
    (iii) Describe evaluation of the problems experienced by, and the 
complaints made by or on behalf of, residents;
    (iv) Contain policy, regulatory, and/or legislative recommendations 
for improving quality of the care and life of the residents; protecting 
the health, safety, welfare, and rights of the residents; and resolving 
resident complaints and identified problems or barriers;
    (v) Contain analysis of the success of the Ombudsman program, 
including success in providing services to residents of, assisted 
living, board and care facilities and other similar adult care 
facilities; and
    (vi) Describe barriers that prevent the optimal operation of the 
Ombudsman program.
    (2) The Ombudsman shall make such report available to the public and 
submit it to the Assistant Secretary, the chief executive officer of the 
State, the State legislature, the State agency responsible for licensing 
or certifying long-term care facilities, and other appropriate 
governmental entities.
    (h) Through adoption of memoranda of understanding and other means, 
the Ombudsman shall lead state-level coordination, and support 
appropriate local Ombudsman entity coordination, between the Ombudsman 
program and other entities with responsibilities relevant to the health, 
safety, well-being or rights of residents of long-term care facilities 
including, but not limited to:

[[Page 179]]

    (1) Area agency on aging programs;
    (2) Aging and disability resource centers;
    (3) Adult protective services programs;
    (4) Protection and advocacy systems, as designated by the State, and 
as established under the Developmental Disabilities Assistance and Bill 
of Rights Act of 2000 (42 U.S.C. 15001 et seq.);
    (5) Facility and long-term care provider licensure and certification 
programs;
    (6) The State Medicaid fraud control unit, as defined in section 
1903(q) of the Social Security Act (42 U.S.C. 1396b(q));
    (7) Victim assistance programs;
    (8) State and local law enforcement agencies;
    (9) Courts of competent jurisdiction; and
    (10) The State legal assistance developer and legal assistance 
programs, including those provided under section 306(a)(2)(C) of the 
Act.
    (i) The Ombudsman shall carry out such other activities as the 
Assistant Secretary determines to be appropriate.



Sec. 1324.15  State agency responsibilities related to the Ombudsman
program.

    (a) In addition to the responsibilities set forth in part 1321 of 
this chapter, the State agency shall ensure that the Ombudsman complies 
with the relevant provisions of the Act and of this rule.
    (b) The State agency shall ensure, through the development of 
policies, procedures, and other means, consistent with Sec. 
1324.11(e)(2), that the Ombudsman program has sufficient authority and 
access to facilities, residents, and information needed to fully perform 
all of the functions, responsibilities, and duties of the Office.
    (c) The State agency shall provide opportunities for training for 
the Ombudsman and representatives of the Office in order to maintain 
expertise to serve as effective advocates for residents. The State 
agency may utilize funds appropriated under Title III and/or Title VII 
of the Act designated for direct services in order to provide access to 
such training opportunities.
    (d) The State agency shall provide personnel supervision and 
management for the Ombudsman and representatives of the Office who are 
employees of the State agency. Such management shall include an 
assessment of whether the Office is performing all of its functions 
under the Act.
    (e) The State agency shall provide monitoring, as required by Sec. 
1321.11(b) of this chapter, including but not limited to fiscal 
monitoring, where the Office and/or local Ombudsman entity is 
organizationally located within an agency under contract or other 
arrangement with the State agency. Such monitoring shall include an 
assessment of whether the Ombudsman program is performing all of the 
functions, responsibilities and duties set forth in Sec. Sec. 1324.13 
and 1324.19. The State agency may make reasonable requests of reports, 
including aggregated data regarding Ombudsman program activities, to 
meet the requirements of this provision.
    (f) The State agency shall ensure that any review of files, records 
or other information maintained by the Ombudsman program is consistent 
with the disclosure limitations set forth in Sec. Sec. 1324.11(e)(3) 
and 1327.13(e).
    (g) The State agency shall integrate the goals and objectives of the 
Office into the State plan and coordinate the goals and objectives of 
the Office with those of other programs established under Title VII of 
the Act and other State elder rights, disability rights, and elder 
justice programs, including, but not limited to, legal assistance 
programs provided under section 306(a)(2)(C) of the Act, to promote 
collaborative efforts and diminish duplicative efforts. Where 
applicable, the State agency shall require inclusion of goals and 
objectives of local Ombudsman entities into area plans on aging.
    (h) The State agency shall provide elder rights leadership. In so 
doing, it shall require the coordination of Ombudsman program services 
with, the activities of other programs authorized by Title VII of the 
Act as well as other State and local entities with responsibilities 
relevant to the health, safety, well-being or rights of older adults, 
including residents of long-term care facilities as set forth in Sec. 
1324.13(h).
    (i) Interference, retaliation and reprisals. The State agency shall:

[[Page 180]]

    (1) Ensure that it has mechanisms to prohibit and investigate 
allegations of interference, retaliation and reprisals:
    (i) by a long-term care facility, other entity, or individual with 
respect to any resident, employee, or other person for filing a 
complaint with, providing information to, or otherwise cooperating with 
any representative of the Office; or
    (ii) by a long-term care facility, other entity or individual 
against the Ombudsman or representatives of the Office for fulfillment 
of the functions, responsibilities, or duties enumerated at Sec. Sec. 
1324.13 and 1324.19; and
    (2) Provide for appropriate sanctions with respect to interference, 
retaliation and reprisals.
    (j) Legal counsel. (1) The State agency shall ensure that:
    (i) Legal counsel for the Ombudsman program is adequate, available, 
has competencies relevant to the legal needs of the program and of 
residents, and is without conflict of interest (as defined by the State 
ethical standards governing the legal profession), in order to--
    (A) Provide consultation and representation as needed in order for 
the Ombudsman program to protect the health, safety, welfare, and rights 
of residents; and
    (B) Provide consultation and/or representation as needed to assist 
the Ombudsman and representatives of the Office in the performance of 
their official functions, responsibilities, and duties, including, but 
not limited to, complaint resolution and systems advocacy;
    (ii) The Ombudsman and representatives of the Office assist 
residents in seeking administrative, legal, and other appropriate 
remedies. In so doing, the Ombudsman shall coordinate with the legal 
services developer, legal services providers, and victim assistance 
services to promote the availability of legal counsel to residents; and
    (iii) Legal representation, arranged by or with the approval of the 
Ombudsman, is provided to the Ombudsman or any representative of the 
Office against whom suit or other legal action is brought or threatened 
to be brought in connection with the performance of the official duties.
    (2) Such legal counsel may be provided by one or more entities, 
depending on the nature of the competencies and services needed and as 
necessary to avoid conflicts of interest (as defined by the State 
ethical standards governing the legal profession). However, at a 
minimum, the Office shall have access to an attorney knowledgeable about 
the Federal and State laws protecting the rights of residents and 
governing long-term care facilities.
    (3) Legal representation of the Ombudsman program by the Ombudsman 
or representative of the Office who is a licensed attorney shall not by 
itself constitute sufficiently adequate legal counsel.
    (4) The communications between the Ombudsman and legal counsel are 
subject to attorney-client privilege.
    (k) The State agency shall require the Office to:
    (1) Develop and provide final approval of an annual report as set 
forth in section 712(h)(1) of the Act and Sec. 1327.13(g) and as 
otherwise required by the Assistant Secretary.
    (2) Analyze, comment on, and monitor the development and 
implementation of Federal, State, and local laws, regulations, and other 
government policies and actions that pertain to long-term care 
facilities and services, and to the health, safety, welfare, and rights 
of residents, in the State, and recommend any changes in such laws, 
regulations, and policies as the Office determines to be appropriate;
    (3) Provide such information as the Office determines to be 
necessary to public and private agencies, legislators, the media, and 
other persons, regarding the problems and concerns of individuals 
residing in long-term care facilities; and recommendations related to 
such problems and concerns; and
    (4) Establish procedures for the training of the representatives of 
the Office, as set forth in Sec. 1327.13(c)(2).
    (5) Coordinate Ombudsman program services with entities with 
responsibilities relevant to the health, safety, welfare, and rights of 
residents of long-term care facilities, as set forth in Sec. 
1324.13(h).

[[Page 181]]



Sec. 1324.17  Responsibilities of agencies hosting local Ombudsman
entities.

    (a) The agency in which a local Ombudsman entity is organizationally 
located shall be responsible for the personnel management, but not the 
programmatic oversight, of representatives, including employee and 
volunteer representatives, of the Office.
    (b) The agency in which a local Ombudsman entity is organizationally 
located shall not have personnel policies or practices which prohibit 
the representatives of the Office from performing the duties, or from 
adhering to the access, confidentiality and disclosure requirements of 
section 712 of the Act, as implemented through this rule and the 
policies and procedures of the Office.
    (1) Policies, procedures and practices, including personnel 
management practices of the host agency, which the Ombudsman determines 
conflict with the laws or policies governing the Ombudsman program shall 
be sufficient grounds for the refusal, suspension, or removal of the 
designation of local Ombudsman entity by the Ombudsman.
    (2) Nothing in this provision shall prohibit the host agency from 
requiring that the representatives of the Office adhere to the personnel 
policies and procedures of the agency which are otherwise lawful.



Sec. 1324.19  Duties of the representatives of the Office.

    In carrying out the duties of the Office, the Ombudsman may 
designate an entity as a local Ombudsman entity and may designate an 
employee or volunteer of the local Ombudsman entity as a representative 
of the Office. Representatives of the Office may also be designated 
employees or volunteers within the Office.
    (a) Duties. An individual so designated as a representative of the 
Office shall, in accordance with the policies and procedures established 
by the Office and the State agency:
    (1) Identify, investigate, and resolve complaints made by or on 
behalf of residents that relate to action, inaction, or decisions, that 
may adversely affect the health, safety, welfare, or rights of the 
residents;
    (2) Provide services to protect the health, safety, welfare, and 
rights of residents;
    (3) Ensure that residents in the service area of the local Ombudsman 
entity have regular and timely access to the services provided through 
the Ombudsman program and that residents and complainants receive timely 
responses to requests for information and complaints;
    (4) Represent the interests of residents before government agencies 
and assure that individual residents have access to, and pursue (as the 
representative of the Office determines necessary and consistent with 
resident interest) administrative, legal, and other remedies to protect 
the health, safety, welfare, and rights of the residents;
    (5)(i) Review, and if necessary, comment on any existing and 
proposed laws, regulations, and other government policies and actions, 
that pertain to the rights and well-being of residents; and
    (ii) Facilitate the ability of the public to comment on the laws, 
regulations, policies, and actions;
    (6) Promote, provide technical support for the development of, and 
provide ongoing support as requested by resident and family councils; 
and
    (7) Carry out other activities that the Ombudsman determines to be 
appropriate.
    (b) Complaint processing. (1) With respect to identifying, 
investigating and resolving complaints, and regardless of the source of 
the complaint (i.e. complainant), the Ombudsman and the representatives 
of the Office serve the resident of a long-term care facility. The 
Ombudsman or representative of the Office shall investigate a complaint, 
including but not limited to a complaint related to abuse, neglect, or 
exploitation, for the purposes of resolving the complaint to the 
resident's satisfaction and of protecting the health, welfare, and 
rights of the resident. The Ombudsman or representative of the Office 
may identify, investigate and resolve a complaint impacting multiple 
residents or all residents of a facility.
    (2) Regardless of the source of the complaint (i.e. the 
complainant), including when the source is the Ombudsman or 
representative of the Office, the

[[Page 182]]

Ombudsman or representative of the Office must support and maximize 
resident participation in the process of resolving the complaint as 
follows:
    (i) The Ombudsman or representative of Office shall offer privacy to 
the resident for the purpose of confidentially providing information and 
hearing, investigating and resolving complaints.
    (ii) The Ombudsman or representative of the Office shall personally 
discuss the complaint with the resident (and, if the resident is unable 
to communicate informed consent, the resident's representative) in order 
to:
    (A) Determine the perspective of the resident (or resident 
representative, where applicable) of the complaint;
    (B) Request the resident (or resident representative, where 
applicable) to communicate informed consent in order to investigate the 
complaint;
    (C) Determine the wishes of the resident (or resident 
representative, where applicable) with respect to resolution of the 
complaint, including whether the allegations are to be reported and, if 
so, whether Ombudsman or representative of the Office may disclose 
resident identifying information or other relevant information to the 
facility and/or appropriate agencies. Such report and disclosure shall 
be consistent with paragraph (b)(3) of this section;
    (D) Advise the resident (and resident representative, where 
applicable) of the resident's rights;
    (E) Work with the resident (or resident representative, where 
applicable) to develop a plan of action for resolution of the complaint;
    (F) Investigate the complaint to determine whether the complaint can 
be verified; and
    (G) Determine whether the complaint is resolved to the satisfaction 
of the resident (or resident representative, where applicable).
    (iii) Where the resident is unable to communicate informed consent, 
and has no resident representative, the Ombudsman or representative of 
the Office shall:
    (A) Take appropriate steps to investigate and work to resolve the 
complaint in order to protect the health, safety, welfare and rights of 
the resident; and
    (B) Determine whether the complaint was resolved to the satisfaction 
of the complainant.
    (iv) In determining whether to rely upon a resident representative 
to communicate or make determinations on behalf of the resident related 
to complaint processing, the Ombudsman or representative of the Office 
shall ascertain the extent of the authority that has been granted to the 
resident representative under court order (in the case of a guardian or 
conservator), by power of attorney or other document by which the 
resident has granted authority to the representative, or under other 
applicable State or Federal law.
    (3) The Ombudsman or representative of the Office may provide 
information regarding the complaint to another agency in order for such 
agency to substantiate the facts for regulatory, protective services, 
law enforcement, or other purposes so long as the Ombudsman or 
representative of the Office adheres to the disclosure requirements of 
section 712(d) of the Act and the procedures set forth in Sec. 
1324.11(e)(3).
    (i) Where the goals of a resident or resident representative are for 
regulatory, protective services or law enforcement action, and the 
Ombudsman or representative of the Office determines that the resident 
or resident representative has communicated informed consent to the 
Office, the Office must assist the resident or resident representative 
in contacting the appropriate agency and/or disclose the information for 
which the resident has provided consent to the appropriate agency for 
such purposes.
    (ii) Where the goals of a resident or resident representative can be 
served by disclosing information to a facility representative and/or 
referrals to an entity other than those referenced in paragraph 
(b)(3)(i) of this section, and the Ombudsman or representative of the 
Office determines that the resident or resident representative has 
communicated informed consent to the Ombudsman program, the Ombudsman or 
representative of the Office may assist the resident or resident 
representative in contacting the appropriate facility representative or 
the entity, provide

[[Page 183]]

information on how a resident or representative may obtain contact 
information of such facility representatives or entities, and/or 
disclose the information for which the resident has provided consent to 
an appropriate facility representative or entity, consistent with 
Ombudsman program procedures.
    (iii) In order to comply with the wishes of the resident, (or, in 
the case where the resident is unable to communicate informed consent, 
the wishes of the resident representative), the Ombudsman and 
representatives of the Office shall not report suspected abuse, neglect 
or exploitation of a resident when a resident or resident representative 
has not communicated informed consent to such report except as set forth 
in paragraphs (b)(5) through (7) of this section, notwithstanding State 
laws to the contrary.
    (4) For purposes of paragraphs (b)(1) through (3) of this section, 
communication of informed consent may be made in writing, including 
through the use of auxiliary aids and services. Alternatively, 
communication may be made orally or visually, including through the use 
of auxiliary aids and services, and such consent must be documented 
contemporaneously by the Ombudsman or a representative of the Office, in 
accordance with the procedures of the Office;
    (5) For purposes of paragraphs (b)(1) through (3) of this section, 
if a resident is unable to communicate his or her informed consent, or 
perspective on the extent to which the matter has been satisfactorily 
resolved, the Ombudsman or representative of the Office may rely on the 
communication of informed consent and/or perspective regarding the 
resolution of the complaint of a resident representative so long as the 
Ombudsman or representative of the Office has no reasonable cause to 
believe that the resident representative is not acting in the best 
interests of the resident.
    (6) For purposes of paragraphs (b)(1) through (3) of this section, 
the procedures for disclosure, as required by Sec. 1327.11(e)(3), shall 
provide that the Ombudsman or representative of the Office may refer the 
matter and disclose resident-identifying information to the appropriate 
agency or agencies for regulatory oversight; protective services; access 
to administrative, legal, or other remedies; and/or law enforcement 
action in the following circumstances:
    (i) The resident is unable to communicate informed consent to the 
Ombudsman or representative of the Office;
    (ii) The resident has no resident representative;
    (iii) The Ombudsman or representative of the Office has reasonable 
cause to believe that an action, inaction or decision may adversely 
affect the health, safety, welfare, or rights of the resident;
    (iv) The Ombudsman or representative of the Office has no evidence 
indicating that the resident would not wish a referral to be made;
    (v) The Ombudsman or representative of the Office has reasonable 
cause to believe that it is in the best interest of the resident to make 
a referral; and
    (vi) The representative of the Office obtains the approval of the 
Ombudsman or otherwise follows the policies and procedures of the Office 
described in paragraph (b)(9) of this section.
    (7) For purposes of paragraphs (b)(1) through (3) of this section, 
the procedures for disclosure, as required by Sec. 1327.11(e)(3), shall 
provide that, the Ombudsman or representative of the Office may refer 
the matter and disclose resident-identifying information to the 
appropriate agency or agencies for regulatory oversight; protective 
services; access to administrative, legal, or other remedies; and/or law 
enforcement action in the following circumstances:
    (i) The resident is unable to communicate informed consent to the 
Ombudsman or representative of the Office and the Ombudsman or 
representative of the Office has reasonable cause to believe that the 
resident representative has taken an action, inaction or decision that 
may adversely affect the health, safety, welfare, or rights of the 
resident;
    (ii) The Ombudsman or representative of the Office has no evidence 
indicating that the resident would not wish a referral to be made;
    (iii) The Ombudsman or representative of the Office has reasonable 
cause

[[Page 184]]

to believe that it is in the best interest of the resident to make a 
referral; and
    (iv) The representative of the Ombudsman obtains the approval of the 
Ombudsman.
    (8) The procedures for disclosure, as required by Sec. 
1327.11(e)(3), shall provide that, if the Ombudsman or representative of 
the Office personally witnesses suspected abuse, gross neglect, or 
exploitation of a resident, the Ombudsman or representative of the 
Office shall seek communication of informed consent from such resident 
to disclose resident-identifying information to appropriate agencies;
    (i) Where such resident is able to communicate informed consent, or 
has a resident representative available to provide informed consent, the 
Ombudsman or representative of the Office shall follow the direction of 
the resident or resident representative as set forth paragraphs (b)(1) 
through (3) of this section; and
    (ii) Where the resident is unable to communicate informed consent, 
and has no resident representative available to provide informed 
consent, the Ombudsman or representative of the Office shall open a case 
with the Ombudsman or representative of the Office as the complainant, 
follow the Ombudsman program's complaint resolution procedures, and 
shall refer the matter and disclose identifying information of the 
resident to the management of the facility in which the resident resides 
and/or to the appropriate agency or agencies for substantiation of 
abuse, gross neglect or exploitation in the following circumstances:
    (A) The Ombudsman or representative of the Office has no evidence 
indicating that the resident would not wish a referral to be made;
    (B) The Ombudsman or representative of the Office has reasonable 
cause to believe that disclosure would be in the best interest of the 
resident; and
    (C) The representative of the Office obtains the approval of the 
Ombudsman or otherwise follows the policies and procedures of the Office 
described in paragraph (b)(9) of this section.
    (iii) In addition, the Ombudsman or representative of the Office, 
following the policies and procedures of the Office described in 
paragraph (b)(9) of this section, may report the suspected abuse, gross 
neglect, or exploitation to other appropriate agencies for regulatory 
oversight; protective services; access to administrative, legal, or 
other remedies; and/or law enforcement action.
    (9) Prior to disclosing resident-identifying information pursuant to 
paragraph (b)(6) or (8) of this section, a representative of the Office 
must obtain approval by the Ombudsman or, alternatively, follow policies 
and procedures of the Office which provide for such disclosure.
    (i) Where the policies and procedures require Ombudsman approval, 
they shall include a time frame in which the Ombudsman is required to 
communicate approval or disapproval in order to assure that the 
representative of the Office has the ability to promptly take actions to 
protect the health, safety, welfare or rights of residents.
    (ii) Where the policies and procedures do not require Ombudsman 
approval prior to disclosure, they shall require that the representative 
of the Office promptly notify the Ombudsman of any disclosure of 
resident-identifying information under the circumstances set forth in 
paragraph (b)(6) or (8) of this section.
    (iii) Disclosure of resident-identifying information under paragraph 
(b)(7) of this section shall require Ombudsman approval.

[80 FR 7758, Feb. 11, 2015, as amended at 81 FR 92697, Dec. 20, 2016]



Sec. 1324.21  Conflicts of interest.

    The State agency and the Ombudsman shall consider both the 
organizational and individual conflicts of interest that may impact the 
effectiveness and credibility of the work of the Office. In so doing, 
both the State agency and the Ombudsman shall be responsible to identify 
actual and potential conflicts and, where a conflict has been 
identified, to remove or remedy such conflict as set forth in paragraphs 
(b) and (d) of this section.
    (a) Identification of organizational conflicts. In identifying 
conflicts of interest pursuant to section 712(f) of the Act, the State 
agency and the Ombudsman shall consider the organizational

[[Page 185]]

conflicts that may impact the effectiveness and credibility of the work 
of the Office. Organizational conflicts of interest include, but are not 
limited to, placement of the Office, or requiring that an Ombudsman or 
representative of the Office perform conflicting activities, in an 
organization that:
    (1) Is responsible for licensing, surveying, or certifying long-term 
care facilities;
    (2) Is an association (or an affiliate of such an association) of 
long-term care facilities, or of any other residential facilities for 
older individuals or individuals with disabilities;
    (3) Has any ownership or investment interest (represented by equity, 
debt, or other financial relationship) in, or receives grants or 
donations from, a long-term care facility;
    (4) Has governing board members with any ownership, investment or 
employment interest in long-term care facilities;
    (5) Provides long-term care to residents of long-term care 
facilities, including the provision of personnel for long-term care 
facilities or the operation of programs which control access to or 
services for long-term care facilities;
    (6) Provides long-term care coordination or case management for 
residents of long-term care facilities;
    (7) Sets reimbursement rates for long-term care facilities;
    (8) Provides adult protective services;
    (9) Is responsible for eligibility determinations regarding Medicaid 
or other public benefits for residents of long-term care facilities;
    (10) Conducts preadmission screening for long-term care facility 
placements;
    (11) Makes decisions regarding admission or discharge of individuals 
to orfrom long-term care facilities; or
    (12) Provides guardianship, conservatorship or other fiduciary or 
surrogatedecision-making services for residents of long-term care 
facilities.
    (b) Removing or remedying organizational conflicts. The State agency 
and the Ombudsman shall identify and take steps to remove or remedy 
conflicts of interest between the Office and the State agency or other 
agency carrying out the Ombudsman program.
    (1) The Ombudsman shall identify organizational conflicts of 
interest in the Ombudsman program and describe steps taken to remove or 
remedy conflicts within the annual report submitted to the Assistant 
Secretary through the National Ombudsman Reporting System.
    (2) Where the Office is located within or otherwise organizationally 
attached to the State agency, the State agency shall:
    (i) Take reasonable steps to avoid internal conflicts of interest;
    (ii) Establish a process for review and identification of internal 
conflicts;
    (iii) Take steps to remove or remedy conflicts;
    (iv) Ensure that no individual, or member of the immediate family of 
an individual, involved in the designating, appointing, otherwise 
selecting or terminating the Ombudsman is subject to a conflict of 
interest; and
    (v) Assure that the Ombudsman has disclosed such conflicts and 
described steps taken to remove or remedy conflicts within the annual 
report submitted to the Assistant Secretary through the National 
Ombudsman Reporting System.
    (3) Where a State agency is unable to adequately remove or remedy a 
conflict, it shall carry out the Ombudsman program by contract or other 
arrangement with a public agency or nonprofit private organization, 
pursuant to section 712(a)(4) of the Act. The State agency may not enter 
into a contract or other arrangement to carry out the Ombudsman program 
if the other entity, and may not operate the Office directly if it:
    (i) Is responsible for licensing, surveying, or certifying long-term 
care facilities;
    (ii) Is an association (or an affiliate of such an association) of 
long-term care facilities, or of any other residential facilities for 
older individuals or individuals with disabilities; or
    (iii) Has any ownership, operational, or investment interest 
(represented by equity, debt, or other financial relationship) in a 
long-term care facility.

[[Page 186]]

    (4) Where the State agency carries out the Ombudsman program by 
contract or other arrangement with a public agency or nonprofit private 
organization, pursuant to section 712(a)(4) of the Act, the State agency 
shall:
    (i) Prior to contracting or making another arrangement, take 
reasonable steps to avoid conflicts of interest in such agency or 
organization which is to carry out the Ombudsman program and to avoid 
conflicts of interest in the State agency's oversight of the contract or 
arrangement;
    (ii) Establish a process for periodic review and identification of 
conflicts;
    (iii) Establish criteria for approval of steps taken by the agency 
or organization to remedy or remove conflicts;
    (iv) Require that such agency or organization have a process in 
place to:
    (A) Take reasonable steps to avoid conflicts of interest, and
    (B) Disclose identified conflicts and steps taken to remove or 
remedy conflicts to the State agency for review and approval.
    (5) Where an agency or organization carrying out the Ombudsman 
program by contract or other arrangement develops a conflict and is 
unable to adequately remove or remedy a conflict, the State agency shall 
either operate the Ombudsman program directly or by contract or other 
arrangement with another public agency or nonprofit private 
organization. The State agency shall not enter into such contract or 
other arrangement with an agency or organization which is responsible 
for licensing or certifying long-term care facilities in the state or is 
an association (or affiliate of such an association) of long-term care 
facilities.
    (6) Where local Ombudsman entities provide Ombudsman services, the 
Ombudsman shall:
    (i) Prior to designating or renewing designation, take reasonable 
steps to avoid conflicts of interest in any agency which may host a 
local Ombudsman entity.
    (ii) Establish a process for periodic review and identification of 
conflicts of interest with the local Ombudsman entity in any agencies 
hosting a local Ombudsman entity,
    (iii) Require that such agencies disclose identified conflicts of 
interest with the local Ombudsman entity and steps taken to remove or 
remedy conflicts within such agency to the Ombudsman,
    (iv) Establish criteria for approval of steps taken to remedy or 
remove conflicts in such agencies, and
    (v) Establish a process for review of and criteria for approval of 
plans to remove or remedy conflicts with the local Ombudsman entity in 
such agencies.
    (7) Failure of an agency hosting a local Ombudsman entity to 
disclose a conflict to the Office or inability to adequately remove or 
remedy a conflict shall constitute grounds for refusal, suspension or 
removal of designation of the local Ombudsman entity by the Ombudsman.
    (c) Identifying individual conflicts of interest. (1) In identifying 
conflicts of interest pursuant to section 712(f) of the Act, the State 
agency and the Ombudsman shall consider individual conflicts that may 
impact the effectiveness and credibility of the work of the Office.
    (2) Individual conflicts of interest for an Ombudsman, 
representatives of the Office, and members of their immediate family 
include, but are not limited to:
    (i) Direct involvement in the licensing or certification of a long-
term care facility;
    (ii) Ownership, operational, or investment interest (represented by 
equity, debt, or other financial relationship) in an existing or 
proposed long-term care facility;
    (iii) Employment of an individual by, or participation in the 
management of, a long-term care facility in the service area or by the 
owner or operator of any long-term care facility in the service area;
    (iv) Receipt of, or right to receive, directly or indirectly, 
remuneration (in cash or in kind) under a compensation arrangement with 
an owner or operator of a long-term care facility;
    (v) Accepting gifts or gratuities of significant value from a long-
term care facility or its management, a resident or a resident 
representative of a long-term care facility in which the Ombudsman or 
representative of the Office provides services (except where there is

[[Page 187]]

a personal relationship with a resident or resident representative which 
is separate from the individual's role as Ombudsman or representative of 
the Office);
    (vi) Accepting money or any other consideration from anyone other 
than the Office, or an entity approved by the Ombudsman, for the 
performance of an act in the regular course of the duties of the 
Ombudsman or the representatives of the Office without Ombudsman 
approval;
    (vii) Serving as guardian, conservator or in another fiduciary or 
surrogate decision-making capacity for a resident of a long-term care 
facility in which the Ombudsman or representative of the Office provides 
services; and
    (viii) Serving residents of a facility in which an immediate family 
member resides.
    (d) Removing or remedying individual conflicts. (1) The State agency 
or Ombudsman shall develop and implement policies and procedures, 
pursuant to Sec. 1324.11(e)(4), to ensure that no Ombudsman or 
representatives of the Office are required or permitted to hold 
positions or perform duties that would constitute a conflict of interest 
as set forth in Sec. 1324.21(c). This rule does not prohibit a State 
agency or Ombudsman from having policies or procedures that exceed these 
requirements.
    (2) When considering the employment or appointment of an individual 
as the Ombudsman or as a representative of the Office, the State agency 
or other employing or appointing entity shall:
    (i) Take reasonable steps to avoid employing or appointing an 
individual who has an unremedied conflict of interest or who has a 
member of the immediate family with an unremedied conflict of interest;
    (ii) Take reasonable steps to avoid assigning an individual to 
perform duties which would constitute an unremedied conflict of 
interest;
    (iii) Establish a process for periodic review and identification of 
conflicts of the Ombudsman and representatives of the Office, and
    (iv) Take steps to remove or remedy conflicts.
    (3) In no circumstance shall the entity, which appoints or employs 
the Ombudsman, appoint or employ an individual as the Ombudsman who:
    (i) Has direct involvement in the licensing or certification of a 
long-term care facility;
    (ii) Has an ownership or investment interest (represented by equity, 
debt, or other financial relationship) in a long-term care facility. 
Divestment within a reasonable period may be considered an adequate 
remedy to this conflict;
    (iii) Has been employed by or participating in the management of a 
long-term care facility within the previous twelve months.
    (iv) Receives, or has the right to receive, directly or indirectly, 
remuneration (in cash or in kind) under a compensation arrangement with 
an owner or operator of a long-term care facility.
    (4) In no circumstance shall the State agency, other agency which 
carries out the Office, or an agency hosting a local Ombudsman entity 
appoint or employ an individual, nor shall the Ombudsman designate an 
individual, as a representative of the Office who:
    (i) Has direct involvement in the licensing or certification of a 
long-term care facility;
    (ii) Has an ownership or investment interest (represented by equity, 
debt, or other financial relationship) in a long-term care facility. 
Divestment within a reasonable period may be considered an adequate 
remedy to this conflict;
    (iii) Receives, directly or indirectly, remuneration (in cash or in 
kind) under a compensation arrangement with an owner or operator of a 
long-term care facility; or
    (iv) Is employed by, or participating in the management of, a long-
term care facility.
    (A) An agency which appoints or employs representatives of the 
Office shall make efforts to avoid appointing or employing an individual 
as a representative of the Office who has been employed by or 
participating in the management of a long-term care facility within the 
previous twelve months.
    (B) Where such individual is appointed or employed, the agency shall 
take steps to remedy the conflict.

[[Page 188]]

Subpart B [Reserved]



PART 1325_REQUIREMENTS APPLICABLE TO THE DEVELOPMENTAL DISABILITIES
PROGRAM--Table of Contents



Sec.
1325.1 General.
1325.2 Purpose of the regulations.
1325.3 Definitions.
1325.4 Rights of individuals with developmental disabilities.
1325.5 [Reserved]
1325.6 Employment of individuals with disabilities.
1325.7 Reports to the Secretary.
1325.8 Formula for determining allotments.
1325.9 Grants administration requirements.

    Authority: 42 U.S.C. 15001 et seq.

    Source: 80 FR 44807, July 27, 2015, unless otherwise noted. 
Redesignated and amended at 81 FR 35645, 35646, June 3, 2016



Sec. 1325.1  General.

    Except as specified in Sec. 1325.4, the requirements in this part 
are applicable to the following programs and projects:
    (a) Federal Assistance to State Councils on Developmental 
Disabilities;
    (b) Protection and Advocacy for Individuals with Developmental 
Disabilities;
    (c) Projects of National Significance; and
    (d) National Network of University Centers for Excellence in 
Developmental Disabilities Education, Research, and Service.



Sec. 1325.2  Purpose of the regulations.

    These regulations implement the Developmental Disabilities 
Assistance and Bill of Rights Act of 2000 (42 U.S.C. 15001 et seq.).



Sec. 1325.3  Definitions.

    For the purposes of parts 1325 through 1328 of this chapter, the 
following definitions apply:
    ACL. The term ``ACL'' means the Administration for Community Living 
within the U.S. Department of Health and Human Services.
    Act. The term ``Act'' means the Developmental Disabilities 
Assistance and Bill of Rights Act of 2000 (DD Act of 2000) (42 U.S.C. 
15001 et seq.).
    Accessibility. The term ``Accessibility'' means that programs funded 
under the DD Act of 2000 and facilities which are used in those programs 
meet applicable requirements of section 504 of the Rehabilitation Act of 
1973 (Pub. L. 93-112), its implementing regulation, 45 CFR part 84, the 
Americans with Disabilities Act of 1990, as amended , Title VI of the 
Civil Rights Act of 1964 (Pub. L. 88-352), and its implementing 
regulation, 45 CFR part 80.
    (1) For programs funded under the DD Act of 2000, information shall 
be provided to applicants and program participants in plain language and 
in a manner that is accessible and timely to:
    (i) Individuals with disabilities, including accessible Web sites 
and the provision of auxiliary aids and services at no cost to the 
individual; and
    (ii) Individuals who are limited English proficient through the 
provision of language services at no cost to the individual, including:
    (A) Oral interpretation;
    (B) Written translations; and
    (C) Taglines in non-English languages indicating the availability of 
language services.
    AIDD. The term ``AIDD'' means the Administration on Intellectual and 
Developmental Disabilities, within the Administration for Community 
Living at the U.S. Department of Health and Human Services.
    Advocacy activities. The term ``advocacy activities'' means active 
support of policies and practices that promote systems change efforts 
and other activities that further advance self-determination and 
inclusion in all aspects of community living (including housing, 
education, employment, and other aspects) for individuals with 
developmental disabilities, and their families.
    Areas of emphasis. The term ``areas of emphasis'' means the areas 
related to quality assurance activities, education activities and early 
intervention activities, child care-related activities, health-related 
activities, employment-related activities, housing-related activities, 
transportation-related activities, recreation-related activities, and 
other services available or offered to individuals in a community, 
including formal and informal community supports that affect their 
quality of life.

[[Page 189]]

    Assistive technology device. The term ``assistive technology 
device'' means any item, piece of equipment, or product system, whether 
acquired commercially, modified or customized, that is used to increase, 
maintain, or improve functional capabilities of individuals with 
developmental disabilities.
    Assistive technology service. The term ``assistive technology 
service'' means any service that directly assists an individual with a 
developmental disability in the selection, acquisition, or use of an 
assistive technology device. Such term includes: Conducting an 
evaluation of the needs of an individual with a developmental 
disability, including a functional evaluation of the individual in the 
individual's customary environment; purchasing, leasing, or otherwise 
providing for the acquisition of an assistive technology device by an 
individual with a developmental disability; selecting, designing, 
fitting, customizing, adapting, applying, maintaining, repairing or 
replacing an assistive technology device; coordinating and using another 
therapy, intervention, or service with an assistive technology device, 
such as a therapy, intervention, or service associated with an education 
or rehabilitation plan or program; providing training or technical 
assistance for an individual with a developmental disability, or, where 
appropriate, a family member, guardian, advocate, or authorized 
representative of an individual with a developmental disability; and 
providing training or technical assistance for professionals (including 
individuals providing education and rehabilitation services), employers, 
or other individuals who provide services to, employ, or are otherwise 
substantially involved in the major life functions of, an individual 
with developmental disabilities.
    Capacity building activities. The term ``capacity building 
activities'' means activities (e.g. training and technical assistance) 
that expand and/or improve the ability of individuals with developmental 
disabilities, families, supports, services and/or systems to promote, 
support and enhance self-determination, independence, productivity and 
inclusion in community life.
    Center. The term ``Center'' means a University Center for Excellence 
in Developmental Disabilities Education, Research, and Service (UCEDD) 
established under subtitle D of the Act.
    Child care-related activities. The term ``child care-related 
activities'' means advocacy, capacity building, and systemic change 
activities that result in families of children with developmental 
disabilities having access to and use of child care services, including 
before-school, after-school, and out-of-school services, in their 
communities.
    Culturally competent. The term ``culturally competent,'' used with 
respect to services, supports, and other assistance means that services, 
supports, or other assistance that are conducted or provided in a manner 
that is responsive to the beliefs, interpersonal styles, attitudes, 
language, and behaviors of individuals who are receiving the services, 
supports or other assistance, and in a manner that has the greatest 
likelihood of ensuring their maximum participation in the program 
involved.
    Department. The term ``Department'' means the U.S. Department of 
Health and Human Services.
    Developmental disability. The term ``developmental disability'' 
means a severe, chronic disability of an individual 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;
    (vi) Self-direction;
    (vii) Capacity for independent living; and
    (viii) Economic self-sufficiency.
    (5) Reflects the individual's need for a combination and sequence of 
special, interdisciplinary or generic services, individualized supports, 
or other forms of assistance that are of lifelong or extended duration 
and are individually planned and coordinated.

[[Page 190]]

    (6) An individual from birth to age nine, inclusive, who has a 
substantial developmental delay or specific congenital or acquired 
condition, may be considered to have a developmental disability without 
meeting three or more of the criteria described in paragraphs (1) 
through (5) of this definition, if the individual, without services and 
supports, has a high probability of meeting those criteria later in 
life.
    Early intervention activities. The term ``early intervention 
activities'' means advocacy, capacity building, and systemic change 
activities provided to infants and young children described in the 
definition of ``developmental disability'' and their families to enhance 
the development of the individuals to maximize their potential, and the 
capacity of families to meet the special needs of the individuals.
    Education activities. The term ``education activities'' means 
advocacy, capacity building, and systemic change activities that result 
in individuals with developmental disabilities being able to access 
appropriate supports and modifications when necessary, to maximize their 
educational potential, to benefit from lifelong educational activities, 
and to be integrated and included in all facets of student life.
    Employment-related activities. The term ``employment-related 
activities'' means advocacy, capacity building, and systemic change 
activities that result in individuals with developmental disabilities 
acquiring, retaining, or advancing in paid employment, including 
supported employment or self-employment, in integrated settings in a 
community.
    Family support services. The term ``family support services'' means 
services, supports, and other assistance, provided to families with a 
member or members who have developmental disabilities, that are designed 
to: Strengthen the family's role as primary caregiver; prevent 
inappropriate out-of-the-home placement of the members and maintain 
family unity; and reunite, whenever possible, families with members who 
have been placed out of the home. This term includes respite care, 
provision of rehabilitation technology and assistive technology, 
personal assistance services, parent training and counseling, support 
for families headed by aging caregivers, vehicular and home 
modifications, and assistance with extraordinary expenses associated 
with the needs of individuals with developmental disabilities.
    Fiscal year. The term ``fiscal year'' means the Federal fiscal year 
unless otherwise specified.
    Governor. The term ``Governor'' means the chief executive officer of 
a State, as that term is defined in the Act, or his or her designee who 
has been formally designated to act for the Governor in carrying out the 
requirements of the Act and the regulations.
    Health-related activities. The term ``health-related activities'' 
means advocacy, capacity building, and systemic change activities that 
result in individuals with developmental disabilities having access to 
and use of coordinated health, dental, mental health, and other human 
and social services, including prevention activities, in their 
communities.
    Housing-related activities. The term ``housing-related activities'' 
means advocacy, capacity building, and systemic change activities that 
result in individuals with developmental disabilities having access to 
and use of housing and housing supports and services in their 
communities, including assistance related to renting, owning, or 
modifying an apartment or home.
    Inclusion. The term ``inclusion'', used with respect to individuals 
with developmental disabilities, means the acceptance and encouragement 
of the presence and participation of individuals with developmental 
disabilities, by individuals without disabilities, in social, 
educational, work, and community activities, that enable individuals 
with developmental disabilities to have friendships and relationships 
with individuals and families of their own choice; live in homes close 
to community resources, with regular contact with individuals without 
disabilities in their communities; enjoy full access to and active 
participation in the same community activities and types of employment 
as individuals without disabilities; and take full advantage of

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their integration into the same community resources as individuals 
without disabilities, living, learning, working, and enjoying life in 
regular contact with individuals without disabilities.
    Individualized supports. The term ``individualized supports'' means 
supports that: Enable an individual with a developmental disability to 
exercise self-determination, be independent, be productive, and be 
integrated and included in all facets of community life; designed to 
enable such individual to control such individual's environment, 
permitting the most independent life possible; and prevent placement 
into a more restrictive living arrangement than is necessary and enable 
such individual to live, learn, work, and enjoy life in the community; 
and include early intervention services, respite care, personal 
assistance services, family support services, supported employment 
services support services for families headed by aging caregivers of 
individuals with developmental disabilities, and provision of 
rehabilitation technology and assistive technology, and assistive 
technology services.
    Integration. The term ``integration,'' means exercising the equal 
rights of individuals with developmental disabilities to access and use 
the same community resources as are used by and available to other 
individuals.
    Not-for-profit. The term ``not-for-profit,'' used with respect to an 
agency, institution or organization, means an agency, institution, or 
organization that is owned or operated by one or more corporations or 
associations, no part of the net earnings of which injures, or may 
lawfully inure, to the benefit of any private shareholder or individual.
    Personal assistance services. The term ``personal assistance 
services'' means a range of services provided by one or more individuals 
designed to assist an individual with a disability to perform daily 
activities, including activities on or off a job, that such individual 
would typically perform if such individual did not have a disability. 
Such services shall be designed to increase such individual's control in 
life and ability to perform everyday activities, including activities on 
or off a job.
    Prevention activities. The term ``prevention activities'' means 
activities that address the causes of developmental disabilities and the 
exacerbation of functional limitation, such as activities that: 
Eliminate or reduce the factors that cause or predispose individuals to 
developmental disabilities or that increase the prevalence of 
developmental disabilities; increase the early identification of 
problems to eliminate circumstances that create or increase functional 
limitations; and mitigate against the effects of developmental 
disabilities throughout the lifespan of an individual.
    Productivity. The term ``productivity'' means engagement in income-
producing work that is measured by increased income, improved employment 
status, or job advancement, or engagement in work that contributes to a 
household or community.
    Protection and Advocacy (P&A) Agency. The term ``Protection and 
Advocacy (P&A) Agency'' means a protection and advocacy system 
established in accordance with section 143 of the Act.
    Quality assurance activities. The term ``quality assurance 
activities'' means advocacy, capacity building, and systemic change 
activities that result in improved consumer and family-centered quality 
assurance and that result in systems of quality assurance and consumer 
protection that include monitoring of services, supports, and assistance 
provided to an individual with developmental disabilities that ensures 
that the individual will not experience abuse, neglect, sexual or 
financial exploitation, or violation of legal or human rights; and will 
not be subject to the inappropriate use of restraints or seclusion; 
include training in leadership, self-advocacy, and self-determination 
for individuals with developmental disabilities, their families, and 
their guardians to ensure that those individuals will not experience 
abuse, neglect, sexual or financial exploitation, or violation of legal 
or human rights; and will not be subject to the inappropriate use of 
restraints or seclusion; or

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include activities related to interagency coordination and systems 
integration that result in improved and enhanced services, supports, and 
other assistance that contribute to and protect the self-determination, 
independence, productivity, and integration and inclusion in all facets 
of community life of individuals with developmental disabilities.
    Rehabilitation technology. The term ``rehabilitation technology'' 
means the systematic application of technologies, engineering 
methodologies, or scientific principles to meet the needs of, and 
address the barriers confronted by individuals with developmental 
disabilities in areas that include education, rehabilitation, 
employment, transportation, independent living, and recreation. Such 
term includes rehabilitation engineering, and the provision of assistive 
technology devices and assistive technology services.
    Required planning documents. The term ``required planning 
documents'' means the State plans required by Sec. 1326.30 of this 
chapter for the State Council on Developmental Disabilities, the Annual 
Statement of Goals and Priorities required by Sec. 1326.22(c) of this 
chapter for P&As, and the five-year plan and annual report required by 
Sec. 1328.7 of this chapter for UCEDDs.
    Secretary. The term ``Secretary'' means the Secretary of the U.S. 
Department of Health and Human Services.
    Self-determination activities. The term ``self-determination 
activities'' means activities that result in individuals with 
developmental disabilities, with appropriate assistance, having the 
ability and opportunity to communicate and make personal decisions; the 
ability and opportunity to communicate choices and exercise control over 
the type and intensity of services, supports, and other assistance the 
individuals receive; the authority to control resources to obtain needed 
services, supports, and other assistance; opportunities to participate 
in, and contribute to, their communities; and support, including 
financial support, to advocate for themselves and others to develop 
leadership skills through training in self-advocacy to participate in 
coalitions, to educate policymakers, and to play a role in the 
development of public policies that affect individuals with 
developmental disabilities.
    State. The term ``State'':
    (1) Except as applied to the University Centers of Excellence in 
Developmental Disabilities Education, Research and Service in section 
155 of the Act, includes each of the several States of the United 
States, the District of Columbia, the Commonwealth of Puerto Rico, the 
United States Virgin Islands, Guam, American Samoa, and the Commonwealth 
of the Northern Mariana Islands.
    (2) For the purpose of UCEDDs in section 155 of the Act and part 
1388 of this chapter, ``State'' means each of the several States of the 
United States, the District of Columbia, the Commonwealth of Puerto 
Rico, the United States Virgin Islands, and Guam.
    State Council on Developmental Disabilities (SCDD). The term ``State 
Council on Developmental Disabilities (SCDD)'' means a Council 
established under section 125 of the DD Act.
    Supported employment services. The term ''supported employment 
services'' means services that enable individuals with developmental 
disabilities to perform competitive work in integrated work settings, in 
the case of individuals with developmental disabilities for whom 
competitive employment has not traditionally occurred; or for whom 
competitive employment has been interrupted or intermittent as a result 
of significant disabilities; and who, because of the nature and severity 
of their disabilities, need intensive supported employment services or 
extended services in order to perform such work.
    Systemic change activities. The term ``systemic change activities'' 
means a sustainable, transferable and replicable change in some aspect 
of service or support availability, design or delivery that promotes 
positive or meaningful outcomes for individuals with developmental 
disabilities and their families.
    Transportation-related activities. The term ``transportation-related 
activities'' means advocacy, capacity building, and systemic change 
activities that result in individuals with developmental disabilities 
having access to and use of transportation.

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    UCEDD. The term ``UCEDD'' means University Centers for Excellence in 
Developmental Disabilities Education, Research, and Service, also known 
by the term ``Center'' under section 102(5) of the Act.
    Unserved and underserved. The term ``unserved and underserved'' 
includes populations such as individuals from racial and ethnic minority 
backgrounds, disadvantaged individuals, individuals with limited English 
proficiency, individuals from underserved geographic areas (rural or 
urban), and specific groups of individuals within the population of 
individuals with developmental disabilities, including individuals who 
require assistive technology in order to participate in community life.



Sec. 1325.4  Rights of individuals with developmental disabilities.

    (a) Section 109 of the Act, Rights of Individuals with Developmental 
Disabilities (42 U.S.C. 15009), is applicable to the SCDD.
    (b) In order to comply with section 124(c)(5)(H) of the Act (42 
U.S.C. 15024(c)(5)(H)), regarding the rights of individuals with 
developmental disabilities, the State participating in the SCDD program 
must meet the requirements of 45 CFR 1386.30(f).
    (c) Applications from UCEDDs also must contain an assurance that the 
human rights of individuals assisted by this program will be protected 
consistent with section 101(c) (see section 154(a)(3)(D) of the Act).



Sec. 1325.5  [Reserved]



Sec. 1325.6  Employment of individuals with disabilities.

    Each grantee which receives Federal funding under the Act must meet 
the requirements of section 107 of the Act (42 U.S.C. 15007) 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: 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 of 
1990 (Pub. L. 101-336, 42 U.S.C. 12101 et seq.) with respect to 
employment of individuals with disabilities. Failure to comply with 
section 107 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 E of 45 
CFR part 1326.



Sec. 1325.7  Reports to the Secretary.

    All grantee submission of plans, applications and reports must label 
goals, activities and results clearly in terms of the following: Area of 
emphasis, type of activity (advocacy, capacity building, systemic 
change), and categories of measures of progress.



Sec. 1325.8  Formula for determining allotments.

    The Secretary, or his or her designee, will allocate funds 
appropriated under the Act for the State Councils on Developmental 
Disabilities and the P&As as directed in sections 122 and 142 of the Act 
(42 U.S.C. 15022 and 15042).



Sec. 1325.9  Grants administration requirements.

    (a) The following parts of this title and title 2 CFR apply to 
grants funded under parts 1326 and 1328 of this chapter, and to grants 
for Projects of National Significance under section 162 of the Act (42 
U.S.C. 15082):
    (1) 45 CFR part 16--Procedures of the Departmental Grant Appeals 
Board.
    (2) 45 CFR part 46--Protection of Human Subjects.
    (3) 45 CFR part 75--Uniform Administrative Requirements, Cost 
Principles, and Audit Requirements for HHS Award.
    (4) 2 CFR part 376--Nonprocurement Debarment and Suspension.
    (5) 45 CFR part 80--Nondiscrimination under Programs Receiving 
Federal

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Assistance through the Department of Health and Human Services 
Effectuation of title VI of the Civil Rights Act of 1964.
    (5) 45 CFR part 81--Practice and Procedure for Hearings under part 
80 of this title.
    (6) 45 CFR part 84--Nondiscrimination on the Basis of Handicap in 
Programs and Activities Receiving Federal Financial Assistance.
    (7) 45 CFR part 86--Nondiscrimination on the Basis of Sex in 
Education Programs and Activities Receiving Federal Financial 
Assistance.
    (8) 45 CFR part 91--Nondiscrimination on the Basis of Age in 
Programs or Activities Receiving Federal Financial Assistance from HHS.
    (9) 45 CFR part 93--New Restrictions on Lobbying.
    (b) The Departmental Appeals Board also has jurisdiction over 
appeals by any grantee that has received grants under the UCEDD programs 
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 
Secretary, or his or her designee, with respect to specific expenditures 
incurred by the States or by contractors or sub grantees of States. This 
jurisdiction relates to funds provided under the two formula programs--
subtitle B of the Act--Federal Assistance to State Councils on 
Developmental Disabilities, and subtitle C of the Act--Protection and 
Advocacy for Individuals with Developmental Disabilities. Appeals filed 
by States shall be decided in accordance with 45 CFR part 16.
    (d) In making audits and examination to any books, documents, 
papers, and transcripts of records of SCDDs, the P&As, the UCEDDs and 
the Projects of National Significance grantees and sub grantees, as 
provided for in 45 CFR part 75, 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 a P&A 
system for audit purposes, and for purposes of monitoring system 
compliance pursuant to section 103(b) of the Act. However, such 
information will be limited pursuant to section 144(c) 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 the 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 P&A may elect to obtain a release regarding personal information and 
privacy from all individuals requesting or receiving services at the 
time of intake or application. The release shall state that only 
information directly related to client and case eligibility will be 
subject to disclosure to officials of the Department.



PART 1326_FORMULA GRANT PROGRAMS--Table of Contents



                      Subpart A_Basic Requirements

Sec.
1326.1 General.
1326.2 Obligation of funds.
1326.3 Liquidation of obligations.
1326.4 [Reserved]

  Subpart B_Protection and Advocacy for Individuals With Developmental 
                           Disabilities (PADD)

1326.19 Definitions.
1326.20 Agency designated as the State Protection and Advocacy System.
1326.21 Requirements and authority of the State Protection and Advocacy 
          System.
1326.22 Periodic reports: State Protection and Advocacy System.
1326.23 Non-allowable costs for the State Protection and Advocacy 
          System.

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1326.24 Allowable litigation costs.

  Subpart C_Access to Records, Service Providers, and Individuals With 
                       Developmental Disabilities

1326.25 Access to records.
1326.26 Denial or delay of access to records.
1326.27 Access to service providers and individuals with developmental 
          disabilities.
1326.28 Confidentiality of State Protection and Advocacy System records.

    Subpart D_Federal Assistance to State Councils on Developmental 
                              Disabilities

1326.30 State plan requirements.
1326.31 State plan submittal and approval.
1326.32 Periodic reports: Federal assistance to State Councils on 
          Developmental Disabilities.
1326.33 Protection of employees interest.
1326.34 Designated State Agency.
1326.35 Allowable and non-allowable costs for Federal assistance to 
          State Councils on Developmental Disabilities.
1326.36 Final disapproval of the State plan or plan amendments.

  Subpart E_Practice and Procedure for Hearings Pertaining to States' 
 Conformity and Compliance With Developmental Disabilities State Plans, 
                    Reports, and Federal Requirements

                                 General

1326.80 Definitions.
1326.81 Scope of rules.
1326.82 Records to the public.
1326.83 Use of gender and number.
1326.84 Suspension of rules.
1326.85 Filling and service of papers.

                 Preliminary Matters--Notice and Parties

1326.90 Notice of hearing or opportunity for hearing.
1326.91 Time of hearing.
1326.92 Place.
1326.93 Issues at hearing.
1326.94 Request to participate in hearing.

                           Hearing Procedures

1326.100 Who presides.
1326.101 Authority of presiding officer.
1326.102 Rights of parties.
1326.103 Discovery.
1326.104 Evidentiary purpose.
1326.105 Evidence.
1326.106 Exclusion from hearing for misconduct.
1326.107 Unsponsored written material.
1326.108 Official transcript.
1326.109 Record for decision.

                   Post-Hearing Procedures, Decisions

1326.110 Post-hearing briefs.
1326.111 Decisions following hearing.
1326.112 Effective date of decision by the Secretary.

    Authority: 42 U.S.C. 15001 et seq.

    Source: 80 FR 44807, July 27, 2015, unless otherwise noted. 
Redesignated and amended at 81 FR 35645, 35647, June 3, 2016.



                      Subpart A_Basic Requirements



Sec. 1326.1  General.

    All rules under this subpart are applicable to both the State 
Councils on Developmental Disabilities and the agency designated as the 
State Protection and Advocacy (P&As) System.



Sec. 1326.2  Obligation of funds.

    (a) Funds which the Federal Government allots under this part during 
a Federal fiscal year are available for obligation by States for a two-
year period beginning with the first day of the Federal fiscal year in 
which the grant is awarded.
    (b)(1) A State incurs an obligation for acquisition of personal 
property or for the performance of work on the date it makes a binding, 
legally enforceable, written commitment, or when the State Council on 
Developmental Disabilities enters into an Interagency Agreement with an 
agency of State government for acquisition of personal property or for 
the performance of work.
    (2) A State incurs an obligation for personal services, for services 
performed by public utilities, for travel or for rental of real or 
personal property on the date it receives the services, its personnel 
takes the travel, or it uses the rented property.
    (c)(1) A Protection & Advocacy System may elect to treat entry of an 
appearance in judicial and administrative proceedings on behalf of an 
individual with a developmental disability as a basis for obligating 
funds for the litigation costs. The amount of the funds obligated must 
not exceed a reasonable estimate of the costs, and the way the estimate 
was calculated must be documented.
    (2) For the purpose of this paragraph (c), litigation costs means 
expenses for court costs, depositions, expert witness fees, travel in 
connection with a case and similar costs, and costs resulting

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from litigation in which the agency has represented an individual with 
developmental disabilities (e.g., monitoring court orders, consent 
decrees), but not for salaries of employees of the P&A. All funds made 
available for Federal assistance to State Councils on Developmental 
Disabilities and to the P&As obligated under this paragraph (c) are 
subject to the requirement of paragraph (a) of this section. These 
funds, if reobligated, may be reobligated only within a two-year period 
beginning with the first day of the Federal fiscal year in which the 
funds were originally awarded.



Sec. 1326.3  Liquidation of obligations.

    (a) All obligations incurred pursuant to a grant made under the Act 
for a specific Federal fiscal year, must be liquidated within two years 
of the close of the Federal fiscal year in which the grant was awarded.
    (b) The Secretary, or his or her designee, may waive the 
requirements of paragraph (a) of this section when State law impedes 
implementation or the amount of obligated funds to be liquidated is in 
dispute.
    (c) Funds attributable to obligations which are not liquidated in 
accordance with the provisions of this section revert to the Federal 
Government.



Sec. 1326.4  [Reserved]



  Subpart B_Protection and Advocacy for Individuals With Developmental 
                           Disabilities (PADD)



Sec. 1326.19  Definitions.

    As used in this subpart and subpart C of this part, the following 
definitions apply:
    Abuse. The term ``abuse'' means any act or failure to act which was 
performed, or which was failed to be performed, knowingly, recklessly, 
or intentionally, and which caused, or may have caused, injury or death 
to an individual with developmental disabilities, and includes but is 
not limited to such acts as: Verbal, nonverbal, mental and emotional 
harassment; rape or sexual assault; striking; the use of excessive force 
when placing such an individual in bodily restraints; the use of bodily 
or chemical restraints which is not in compliance with Federal and State 
laws and regulations, or any other practice which is likely to cause 
immediate physical or psychological harm or result in long term harm if 
such practices continue. In addition, the P&A may determine, in its 
discretion that a violation of an individual's legal rights amounts to 
abuse, such as if an individual is subject to significant financial 
exploitation.
    American Indian Consortium. The term ``American Indian Consortium'' 
means any confederation of 2 or more recognized American Indian Tribes, 
created through the official resident population of 150,000 enrolled 
tribal members and a contiguous territory of Indian lands in two or more 
States.
    Complaint. The term ``complaint'' includes, but is not limited to, 
any report or communication, whether formal or informal, written or 
oral, received by the P&A system, including media accounts, newspaper 
articles, electronic communications, telephone calls (including 
anonymous calls) from any source alleging abuse or neglect of an 
individual with a developmental disability.
    Designating official. The term ``designating official'' means the 
Governor or other State official, who is empowered by the State 
legislature or Governor to designate the State official or public or 
private agency to be accountable for the proper use of funds by and 
conduct of the agency designated to administer the P&A system.
    Full investigation. The term ``full investigation'' means access to 
service providers, individuals with developmental disabilities and 
records authorized under these regulations, that are necessary for a P&A 
system to make a determination about whether alleged or suspected 
instances of abuse and neglect are taking place or have taken place. 
Full investigations may be conducted independently or in cooperation 
with other agencies authorized to conduct similar investigations.
    Legal guardian, Conservator, and Legal representative. The terms 
``legal guardian,'' ``conservator,'' and ``legal representative'' all 
mean a parent of a minor, unless the State has appointed

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another legal guardian under applicable State law, or an individual 
appointed and regularly reviewed by a State court or agency empowered 
under State law to appoint and review such officers, and having 
authority to make all decisions on behalf of individuals with 
developmental disabilities. It does not include persons acting only as a 
representative payee, persons acting only to handle financial payments, 
executors and administrators of estates, attorneys or other persons 
acting on behalf of an individual with developmental disabilities only 
in individual legal matters, or officials or their designees responsible 
for the provision of services, supports, and other assistance to an 
individual with developmental disabilities.
    Neglect. The term ``neglect'' means a negligent act or omission by 
an individual responsible for providing services, supports or other 
assistance which caused or may have caused injury or death to an 
individual with a developmental disability(ies) or which placed an 
individual with developmental disability(ies) at risk of injury or 
death, and includes acts or omissions such as failure to: establish or 
carry out an appropriate individual program plan or treatment plan 
(including a discharge plan); provide adequate nutrition, clothing, or 
health care to an individual with developmental disabilities; or provide 
a safe environment which also includes failure to maintain adequate 
numbers of trained staff or failure to take appropriate steps to prevent 
self-abuse, harassment, or assault by a peer.
    Probable cause. The term ``probable cause'' means a reasonable 
ground for belief that an individual with developmental disability(ies) 
has been, or may be, subject to abuse or neglect, or that the health or 
safety of the individual is in serious and immediate jeopardy. The 
individual making such determination may base the decision on reasonable 
inferences drawn from his or her experience or training regarding 
similar incidents, conditions or problems that are usually associated 
with abuse or neglect.
    State Protection and Advocacy System. The term ``State Protection 
and Advocacy System'' is synonymous with the term ``P&A'' used elsewhere 
in this regulation, and the terms ``System'' and ``Protection and 
Advocacy System'' used in this part and in subpart C of this part.



Sec. 1326.20  Agency designated as the State Protection and Advocacy
System.

    (a) The designating official must designate the State official or 
public or private agency to be accountable for proper use of funds and 
conduct of the Protection and Advocacy System.
    (b) An agency of the State or private agency providing direct 
services, including guardianship services, may not be designated as the 
agency to administer the Protection and Advocacy System.
    (c) In the event that an entity outside of the State government is 
designated to carry out the program, the designating official or entity 
must assign a responsible State official to receive, on behalf of the 
State, notices of disallowances and compliance actions as the State is 
accountable for the proper and appropriate expenditure of Federal funds.
    (d)(1) Prior to any redesignation of the agency which administers 
and operates the State Protection and Advocacy System, the designating 
official must give written notice of the intention to make the 
redesignation to the agency currently administering and operating the 
State Protection and Advocacy System by registered or certified mail. 
The notice must indicate that the proposed redesignation is being made 
for good cause. The designating official also must publish a public 
notice of the proposed action. The agency and the public shall have a 
reasonable period of time, but not less than 45 days, to respond to the 
notice.
    (2) The public notice must include:
    (i) The Federal requirements for the State Protection and Advocacy 
System for individuals with developmental disabilities (section 143 of 
the Act); and where applicable, the requirements of other Federal 
advocacy programs administered by the State Protection and Advocacy 
System;

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    (ii) The goals and function of the State's Protection and Advocacy 
System including the current Statement of Goals and Priorities;
    (iii) The name and address of the agency currently designated to 
administer and operate the State Protection and Advocacy System, and an 
indication of whether the agency also operates other Federal advocacy 
programs;
    (iv) A description of the current agency operating and administering 
the Protection and Advocacy System including, as applicable, 
descriptions of other Federal advocacy programs it operates;
    (v) A clear and detailed explanation of the good cause for the 
proposed redesignation;
    (vi) A statement suggesting that interested persons may wish to 
write the current agency operating and administering the State 
Protection and Advocacy System at the address provided in paragraph 
(d)(2)(iii) of this section to obtain a copy of its response to the 
notice required by paragraph (d)(1) of this section. Copies must be in a 
format accessible to individuals with disabilities (including plain 
language), and language assistance services will be provided to 
individuals with limited English proficiency, such as translated 
materials or interpretation, upon request;
    (vii) The name of the new agency proposed to administer and operate 
the State Protection and Advocacy System under the Developmental 
Disabilities Program. This agency will be eligible to administer other 
Federal advocacy programs;
    (viii) A description of the system which the new agency would 
administer and operate, including a description of all other Federal 
advocacy programs the agency would operate;
    (ix) The timetable for assumption of operations by the new agency 
and the estimated costs of any transfer and start-up operations; and
    (x) A statement of assurance that the proposed new designated State 
Protection and Advocacy System will continue to serve existing clients 
and cases of the current P&A system or refer them to other sources of 
legal advocacy as appropriate, without disruption.
    (3) The public notice as required by paragraph (d)(1) of this 
section, must be in a format accessible to individuals with 
disabilities, and language assistance services will be provided to 
individuals with limited English proficiency, such as translated 
materials or interpretation, upon request to individuals with 
developmental disabilities or their representatives. The designating 
official must provide for publication of the notice of the proposed 
redesignation using the State register, statewide newspapers, public 
service announcements on radio and television, or any other legally 
equivalent process. Copies of the notice must be made generally 
available to individuals with developmental disabilities and mental 
illness who live in residential facilities through posting or some other 
means.
    (4) After the expiration of the public comment period required in 
paragraph (d)(1) of this section, the designating official must conduct 
a public hearing on the redesignation proposal. After consideration of 
all public and agency comments, the designating official must give 
notice of the final decision to the currently designated agency and the 
public through the same means used under paragraph (d)(3) of this 
section. This notice must include a clear and detailed explanation of 
the good cause finding. If the notice to the currently designated agency 
states that the redesignation will take place, it also must inform the 
agency of its right to appeal this decision to the Secretary, or his or 
her designee, the authority to hear appeals by the Secretary, or his or 
her designee, and provide a summary of the public comments received in 
regard to the notice of intent to redesignate and the results of the 
public hearing and its responses to those comments. The redesignation 
shall not be effective until 10 working days after notifying the current 
agency that administers and operates the State Protection and Advocacy 
System or, if the agency appeals, until the Secretary, or his or her 
designee, has considered the appeal.
    (e)(1) Following notification as indicated in paragraph (d)(4) of 
this section, the agency that administers and

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operates the State Protection and Advocacy System which is the subject 
of such action, may appeal the redesignation to the Secretary, or his or 
her designee. To do so, the agency that administers and operates the 
State Protection and Advocacy System must submit an appeal in writing to 
the Secretary, or his or her designee, within 20 days of receiving 
official notification under paragraph (d)(4) of this section, with a 
separate copy sent by registered of certified mail to the designating 
official who made the decision concerning redesignation.
    (2) In the event that the agency subject to redesignation does 
exercise its right to appeal under paragraph (e)(1) of this section, the 
designating official must give public notice of the Secretary's, or his 
or her designated person's, final decision regarding the appeal through 
the same means utilized under paragraph (d)(3) of this section within 10 
working days of receipt of the Secretary's, or his or her designee's, 
final decision under paragraph (e)(6) of this section.
    (3) The designating official within 10 working days from the receipt 
of a copy of the appeal must provide written comments to the Secretary, 
or his or her designee, (with a copy sent by registered or certified 
mail to the Protection and Advocacy agency appealing under paragraph 
(e)(1) of this section), or withdraw the redesignation. The comments 
must include a summary of the public comments received in regard to the 
notice of intent to redesignate and the results of the public hearing 
and its responses to those comments.
    (4) In the event that the designating official withdraws the 
redesignation while under appeal pursuant to paragraph (e)(1) of this 
section, the designating official must notify the Secretary, or his or 
her designee, and the current agency, and must give public notice of his 
or her decision through the same means utilized under paragraph (d)(3) 
of this section.
    (5) As part of their submission under paragraph (e)(1) or (3) of 
this section, either party may request, and the Secretary, or his or her 
designee, may grant an opportunity for a meeting with the Secretary, or 
his or her designee, at which representatives of both parties will 
present their views on the issues in the appeal. The meeting will be 
held within 20 working days of the submission of written comments by the 
designating official under paragraph (e)(2) of this section. The 
Secretary, or his or her designee, will promptly notify the parties of 
the date and place of the meeting.
    (6) Within 30 days of the informal meeting under paragraph (e)(5) of 
this section, or, if there is no informal meeting under paragraph (e)(5) 
of this section, within 30 days of the submission under paragraph (e)(3) 
of this section, the Secretary, or his or her designee, will issue to 
the parties a final written decision on whether the redesignation was 
for good cause as defined in paragraph (d)(1) of this section. The 
Secretary, or his or her designee, will receive comments on the record 
from agencies administering the Federal advocacy programs that will be 
directly affected by the proposed redesignation. The P&A and the 
designating official will have an opportunity to comment on the 
submissions of the Federal advocacy programs. The Secretary, or his or 
her designee, shall consider the comments of the Federal programs, the 
P&A and the designating official in making his final decision on the 
appeal.
    (f)(1) Within 30 days after the redesignation becomes effective 
under paragraph (d)(4) of this section, the designating official must 
submit an assurance to the Secretary, or his or her designee, that the 
newly designated agency that will administer and operate the State 
Protection and Advocacy System meets the requirements of the statute and 
the regulations.
    (2) In the event that the agency administering and operating the 
State Protection and Advocacy System subject to redesignation does not 
exercise its rights to appeal within the period provided under paragraph 
(e)(1) of this section, the designating official must provide to the 
Secretary, or his or her designee, documentation that the agency was 
redesignated for good cause. Such documentation must clearly demonstrate 
that the Protection and Advocacy agency subject to redesignation was not 
redesignated for any actions or activities which were carried out under

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section 143 of the Act, this regulation or any other Federal advocacy 
program's legislation or regulations.



Sec. 1326.21  Requirements and authority of the State Protection
and Advocacy System.

    (a) In order for a State to receive Federal funding for Protection 
and Advocacy activities under this subpart, as well as for the State 
Council on Developmental Disabilities activities (subpart D of this 
part), the Protection and Advocacy System must meet the requirements of 
section 143 and 144 of the Act (42 U.S.C. 15043 and 15044) 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 as information and referral activities.
    (c) A P&A shall not implement a policy or practice restricting the 
remedies that may be sought on behalf of individuals with developmental 
disabilities or compromising the authority of the P&A to pursue such 
remedies through litigation, legal action or other forms of advocacy. 
Under this requirement, States may not establish a policy or practice, 
which requires the P&A to: Obtain the State's review or approval of the 
P&A's plans to undertake a particular advocacy initiative, including 
specific litigation (or to pursue litigation rather than some other 
remedy or approach); refrain from representing individuals with 
particular types of concerns or legal claims, or refrain from otherwise 
pursuing a particular course of action designed to remedy a violation of 
rights, such as educating policymakers about the need for modification 
or adoption of laws or policies affecting the rights of individuals with 
developmental disabilities; restrict the manner of the P&A's 
investigation in a way that is inconsistent with the System's required 
authority under the DD Act; or similarly interfere with the P&A's 
exercise of such authority. The requirements of this paragraph (c) shall 
not prevent P&As, including those functioning as agencies within State 
governments, from developing case or client acceptance criteria as part 
of the annual priorities identified by the P&A as described in Sec. 
1326.23(c). Clients must be informed at the time they apply for services 
of such criteria.
    (d) A Protection and Advocacy 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. These responsibilities include 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 State authority exceeds the authority required 
by the Developmental Disabilities Assistance and Bill of Rights Act of 
2000. However, State law must not diminish the required authority of the 
Protection and Advocacy System as set by the Act.
    (g) Each Protection and Advocacy 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 
Protection and Advocacy System on program policies and priorities. The 
Advisory Council and Governing Board shall be comprised of a majority of 
individuals with disabilities who are eligible for services, have 
received or are receiving services, parents, family members, 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 published in the 
Federal Register. Reasonable effort shall be made by

[[Page 201]]

AIDD to seek comments through notification to major disability advocacy 
groups, the State Bar, disability law resources, the State Councils on 
Developmental Disabilities, and the University Centers for Excellence in 
Developmental Disabilities Education, Research, and Service, for 
example, through newsletters and publication 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 Protection and Advocacy System releases information 
to individuals not otherwise authorized to receive it, the Protection 
and Advocacy System must obtain written consent from the client 
requesting assistance or his or her guardian.
    (j) Contracts for program operations. (1) An eligible P&A system may 
contract for the operation of part of its program with another public or 
private nonprofit organization with demonstrated experience working with 
individuals with developmental disabilities, provided that:
    (i) The eligible P&A system institutes oversight and monitoring 
procedures which ensure that any and all subcontractors will be able to 
meet all applicable terms, conditions and obligations of the Federal 
grant, including but not limited to the ability to pursue all forms of 
litigation under the DD Act;
    (ii) The P&A exercises appropriate oversight to ensure that the 
contracting organization meets all applicable responsibilities and 
standards which apply to P&As, including but not limited to, the 
confidentiality provisions in the DD Act and regulations, ethical 
responsibilities, program accountability and quality controls;
    (2) Any eligible P&A system should work cooperatively with existing 
advocacy agencies and groups and, where appropriate, consider entering 
into contracts for protection and advocacy services with organizations 
already working on behalf of individuals with developmental 
disabilities.



Sec. 1326.22  Periodic reports: State Protection and Advocacy System.

    (a) By January 1 of each year, each State Protection and Advocacy 
System shall submit to AIDD, an Annual Program Performance Report. In 
order to be accepted, the Report must meet the requirements of section 
144(e) of the Act (42 U.S.C. 15044), the applicable regulation and 
include information on the System's program necessary for the Secretary, 
or his or her designee, to comply with section 105(1), (2), and (3) of 
the Act (42 U.S.C. 15005). The Report shall describe the activities, 
accomplishments, and expenditures of the system during the preceding 
fiscal year. Reports shall include a description of the system's goals 
and the extent to which the goals were achieved, barriers to their 
achievement; the process used to obtain public input, the nature of such 
input, and how such input was used; the extent to which unserved or 
underserved individuals or groups, particularly from ethnic or racial 
groups or geographic regions (e.g., rural or urban areas) were the 
target of assistance or service; and other such information on the 
Protection and Advocacy System's activities requested by AIDD.
    (b) Financial status reports (standard form 425) must be submitted 
by the agency administering and operating the State Protection and 
Advocacy System semiannually.
    (c) By January 1 of each year, the State Protection and Advocacy 
System shall submit to AIDD, an Annual Statement of Goals and 
Priorities, (SGP), for the coming fiscal year as required under section 
143(a)(2)(C) of the Act (42 U.S.C. 15043). In order to be accepted by 
AIDD, an SGP must meet the requirements of section 143 of the Act.
    (1) The SGP is a description and explanation of the system's goals 
and priorities for its activities, selection criteria for its individual 
advocacy and training activities, and the outcomes it strives to 
accomplish. The SGP is developed through data driven strategic planning. 
If changes are made to the goals or the indicators of progress 
established for a year, the SGP must be amended to reflect those 
changes. The SGP must include a description of how the Protection and 
Advocacy System

[[Page 202]]

operates, and where applicable, how it coordinates the State Protection 
and Advocacy program for individuals with developmental disabilities 
with other Protection and Advocacy programs administered by the State 
Protection and Advocacy System. This description must include the 
System's processes for intake, internal and external referrals, and 
streamlining of advocacy services. If the System will be requesting or 
requiring fees or donations from clients as part of the intake process, 
the SGP must state that the system will be doing so. The description 
also must address collaboration, the reduction of duplication and 
overlap of services, the sharing of information on service needs, and 
the development of statements of goals and priorities for the various 
advocacy programs.
    (2) Priorities as established through the SGP serve as the basis for 
the Protection and Advocacy System to determine which cases are selected 
in a given fiscal year. Protection and Advocacy Systems have the 
authority to turn down a request for assistance when it is outside the 
scope of the SGP, but they must inform individuals when this is the 
basis for turning them down.
    (d) Each fiscal year, the Protection and Advocacy System shall:
    (1) Obtain formal public input on its Statement of Goals and 
Priorities;
    (2) At a minimum, provide for a broad distribution of the proposed 
Statement of Goals and Priorities for the next fiscal year in a manner 
accessible to individuals with developmental disabilities and their 
representatives, allowing at least 45 days from the date of distribution 
for comment;
    (3) Provide to the State Councils on Developmental Disabilities and 
the University Centers for Excellence in Developmental Disabilities 
Education, Research and Service a copy of the proposed Statement of 
Goals and Priorities for comment concurrently with the public notice;
    (4) Incorporate or address any comments received through public 
input and any input received from the State Councils on Developmental 
Disabilities and the University Centers for Excellence in Developmental 
Disabilities Education, Research and Service in the final Statement 
submitted; and
    (5) Address how the Protection and Advocacy System, State Councils 
on Developmental Disabilities, and University Centers for Excellence in 
Developmental Disabilities Education Research and Service will 
collaborate with each other and with other public and private entities.



Sec. 1326.23  Non-allowable costs for the State Protection 
and Advocacy System.

    (a) Federal financial participation is not allowable for:
    (1) Costs incurred for activities on behalf of individuals with 
developmental disabilities to solve problems not directly related to 
their disabilities and which are faced by the general populace. Such 
activities include but are not limited to: Preparation of wills, divorce 
decrees, and real estate proceedings. Allowable costs in such cases 
would include the Protection and Advocacy System providing disability-
related technical assistance information and referral to appropriate 
programs and services; and
    (2) Costs not allowed under other applicable statutes, Departmental 
regulations and issuances of the Office of Management and Budget.
    (b) Attorneys' fees are considered program income pursuant to 45 CFR 
part 75 and must be added to the funds committed to the program and used 
to further the objectives of the program. This requirement shall apply 
to all attorneys' fees, including those earned by contractors and those 
received after the project period in which they were earned.



Sec. 1326.24  Allowable litigation costs.

    Allotments may be used to pay the otherwise allowable costs incurred 
by a Protection and Advocacy System in bringing lawsuits in its own 
right to redress incidents of abuse or neglect, discrimination and other 
rights violations impacting the ability of individuals with 
developmental disabilities to obtain access to records and when it 
appears on behalf of named plaintiffs or a class of plaintiff for such 
purposes.

[[Page 203]]



  Subpart C_Access to Records, Service Providers, and Individuals With 
                       Developmental Disabilities



Sec. 1326.25  Access to records.

    (a) Pursuant to sections 143(a)(2), (A)(i), (B), (I), and (J) of the 
Act, and subject to the provisions of this section, a Protection and 
Advocacy (P&A) System, and all of its authorized agents, shall have 
access to the records of individuals with developmental disabilities 
under the following circumstances:
    (1) If authorized by an individual who is a client of the system, or 
who has requested assistance from the system, or by such individual's 
legal guardian, conservator or other legal representative.
    (2) In the case of an individual to whom all of the following 
conditions apply:
    (i) The individual, due to his or her mental or physical condition, 
is unable to authorize the system to have access;
    (ii) The individual does not have a legal guardian, conservator or 
other legal representative, or the individual's guardian is the State 
(or one of its political subdivisions); and
    (iii) The individual has been the subject of a complaint to the P&A 
system, or the P&A system has probable cause (which can be the result of 
monitoring or other activities including media reports and newspaper 
articles) to believe that such individual has been subject to abuse and 
neglect.
    (3) In the case of an individual, who has a legal guardian, 
conservator, or other legal representative, about whom a complaint has 
been received by the system or, as a result of monitoring or other 
activities, the system has determined that there is probable cause to 
believe that the individual with developmental disability has been 
subject to abuse or neglect, whenever the following conditions exist:
    (i) The P&A system has made a good faith effort to contact the legal 
guardian, conservator, or other legal representative upon prompt receipt 
(within the timelines set forth in paragraph (c) of this section) of the 
contact information (which is required to include but not limited to 
name, address, telephone numbers, and email address) of the legal 
guardian, conservator, or other legal representative;
    (ii) The system has offered assistance to the legal guardian, 
conservator, or other legal representative to resolve the situation; and
    (iii) The legal guardian, conservator, or other legal representative 
has failed or refused to provide consent on behalf of the individual.
    (4) If the P&A determines there is probable cause to believe that 
the health or safety of an individual is in serious and immediate 
jeopardy, no consent from another party is needed.
    (5) In the case of death, no consent from another party is needed. 
Probable cause to believe that the death of an individual with a 
developmental disability resulted from abuse or neglect or any other 
specific cause is not required for the P&A system to obtain access to 
the records. Any individual who dies in a situation in which services, 
supports, or other assistance are, have been, or may customarily be 
provided to individuals with developmental disabilities shall, for the 
purposes of the P&A system obtaining access to the individual's records, 
be deemed an ``individual with a developmental disability.''
    (b) Individual records to which P&A systems must have access under 
section 143(a)(2), (A)(i), (B), (I), and (J) of the Act (whether written 
or in another medium, draft, preliminary or final, including handwritten 
notes, electronic files, photographs or video or audiotape records) 
shall include, but shall not be limited to:
    (1) Individual records prepared or received in the course of 
providing intake, assessment, evaluation, education, training and other 
services; supports or assistance, including medical records, financial 
records, and monitoring and other reports prepared or received by a 
service provider. This includes records stored or maintained at sites 
other than that of the service provider, as well as records that were 
not prepared by the service provider, but received by the service 
provider from other service providers.
    (2) Reports prepared by a Federal, State or local governmental 
agency, or

[[Page 204]]

a private organization charged with investigating incidents of abuse or 
neglect, injury or death. The organizations whose reports are subject to 
this requirement include, but are not limited to, agencies in the foster 
care systems, developmental disabilities systems, prison and jail 
systems, public and private educational systems, emergency shelters, 
criminal and civil law enforcement agencies such as police departments, 
agencies overseeing juvenile justice facilities, juvenile detention 
facilities, all pre- and post-adjudication juvenile facilities, State 
and Federal licensing and certification agencies, and private 
accreditation organizations such as the Joint Commission on the 
Accreditation of Health Care Organizations or by medical care evaluation 
or peer review committees, regardless of whether they are protected by 
federal or state law. The reports subject to this requirement describe 
any or all of the following:
    (i) The incidents of abuse, neglect, injury, and/or death;
    (ii) The steps taken to investigate the incidents;
    (iii) Reports and records, including personnel records, prepared or 
maintained by the service provider in connection with such reports of 
incidents; or,
    (iv) Supporting information that was relied upon in creating a 
report including all information and records that describe persons who 
were interviewed, physical and documentary evidence that was reviewed, 
and the related investigative findings;
    (3) Discharge planning records; and
    (4) Information in professional, performance, building or other 
safety standards, and demographic and statistical information relating 
to a service provider.
    (c) The time period in which the P&A system must be given access to 
records of individuals with developmental disabilities under sections 
143(a)(2)(A)(i), (B), (I), and (J) of the Act, and subject to the 
provisions of this section, varies depending on the following 
circumstances:
    (1) If the P&A system determines that there is probable cause to 
believe that the health or safety of the individual with a developmental 
disability is in serious and immediate jeopardy, or in any case of the 
death of an individual with a developmental disability, access to the 
records of the individual with a developmental disability, as described 
in paragraph (b) of this section shall be provided (including the right 
to inspect and copy records as specified in paragraph (d) of this 
section) to the P&A system within 24 hours of receipt of the P&A 
system's written request for the records without the consent of another 
party.
    (2) In all other cases, access to records of individuals with 
developmental disabilities shall be provided to the P&A system within 
three business days after the receipt of such a written request from the 
P&A system.
    (d) A P&A shall be permitted to inspect and copy information and 
records, subject to a reasonable charge to offset duplicating costs. If 
the service provider or its agents copy the records for the P&A system, 
it may not charge the P&A system an amount that would exceed the amount 
customarily charged other non-profit or State government agencies for 
reproducing documents. At its option, the P&A may make written notes 
when inspecting information and records, and may use its own 
photocopying equipment to obtain copies. If a party other than the P&A 
system performs the photocopying or other reproduction of records, it 
shall provide the photocopies or reproductions to the P&A system within 
the time frames specified in paragraph (c) of this section. In addition, 
where records are kept or maintained electronically they shall be 
provided to the P&A electronically.
    (e) The Health Insurance Portability and Accountability Act Privacy 
Rule permits the disclosure of protected health information (PHI) 
without the authorization of the individual to a P&A system to the 
extent that such disclosure is required by law and the disclosure 
complies with the requirements of that law.
    (f) Educational agencies, including public, private, and charter 
schools, as well as, public and private residential and non-residential 
schools, must provide a P&A with the name of and contact information for 
the parent or guardian of a student for whom the

[[Page 205]]

P&A has probable cause to obtain records under the DD Act.



Sec. 1326.26  Denial or delay of access to records.

    If a P&A system's access is denied or delayed beyond the deadlines 
specified in Sec. 1326.25, the P&A system shall be provided, within one 
business day after the expiration of such deadline, with a written 
statement of reasons for the denial or delay. In the case of a denial 
for alleged lack of authorization, the name, address and telephone 
number of individuals with developmental disabilities and legal 
guardians, conservators, or other legal representative will be included 
in the aforementioned response. All of the above information shall be 
provided whether or not the P&A has probable cause to suspect abuse or 
neglect, or has received a complaint.



Sec. 1326.27  Access to service providers and individuals with 
developmental disabilities.

    (a) Access to service providers and individuals with developmental 
disabilities shall be extended to all authorized agents of a P&A system.
    (b) The P&A system shall have reasonable unaccompanied access to 
individuals with developmental disabilities at all times necessary to 
conduct a full investigation of an incident of abuse or neglect.
    (1) Such access shall be afforded upon request, by the P&A system 
when:
    (i) An incident is reported or a complaint is made to the P&A 
system;
    (ii) The P&A system determines that there is probable cause to 
believe that an incident has or may have occurred; or
    (iii) The P&A system determines that there is or may be imminent 
danger of serious abuse or neglect of an individual with a developmental 
disability.
    (2) A P&A system shall have reasonable unaccompanied access to 
public and private service providers, programs in the State, and to all 
areas of the service provider's premises that are used by individuals 
with developmental disabilities or are accessible to them. Such access 
shall be provided without advance notice and made available immediately 
upon request. This authority shall include the opportunity to interview 
any individual with developmental disability, employee, or other 
persons, including the person thought to be the victim of such abuse, 
who might be reasonably believed by the system to have knowledge of the 
incident under investigation. The P&A may not be required to provide the 
name or other identifying information regarding the individual with 
developmental disability or staff with whom it plans to meet; neither 
may the P&A be required to justify or explain its interaction with such 
persons.
    (c) In addition to the access required under paragraph (b) of this 
section, a P&A system shall have reasonable unaccompanied access to 
service providers for routine circumstances. This includes areas which 
are used by individuals with developmental disabilities and are 
accessible to individuals with developmental disabilities at reasonable 
times, which at a minimum shall include normal working hours and 
visiting hours. A P&A also shall be permitted to attend treatment 
planning meetings concerning individuals with developmental disabilities 
with the consent of the individual or his or her guardian, conservator 
or other legal representative, except that no consent is required if the 
individual, due to his or mental or physical condition, is unable to 
authorize the system to have access to a treatment planning meeting; and 
the individual does not have a legal guardian, conservator or other 
legal representative, or the individual's guardian is the State (or one 
of its political subdivisions).
    (1) Access to service providers shall be afforded immediately upon 
an oral or written request by the P&A system. Except where complying 
with the P&A's request would interfere with treatment or therapy to be 
provided, service providers shall provide access to individuals for the 
purpose covered by this paragraph. If the P&As access to an individual 
must be delayed beyond 24 hours to allow for the provision of treatment 
or therapy, the P&A shall receive access as soon as possible thereafter. 
In cases where a service provider denies a P&A access to an individual 
with a developmental disability on the grounds that such access would 
interfere with the individual's

[[Page 206]]

treatment or therapy, the service provider shall, no later than 24 hours 
of the P&A's request, provide the P&A with a written statement from a 
physician stating that P&A access to the individual will interfere with 
the individual's treatment and therapy, and the time and circumstances 
under which the P&A can interview the individual. If the physician 
states that the individual cannot be interviewed in the next 24 hours, 
the P&A and the service provider shall engage in a good faith 
interactive process to determine when and under what circumstances the 
P&A can interview the individual. If the P&A and the service provider 
are unable to agree upon the time and circumstance, they shall select a 
mutually agreeable independent physician who will determine when and 
under what circumstances the individual may be interviewed. The expense 
of the independent physician's services shall be paid for by the service 
provider. Individuals with developmental disabilities subject to the 
requirements in this paragraph include adults and minors who have legal 
guardians or conservators.
    (2) P&A activities shall be conducted so as to minimize interference 
with service provider programs, respect individuals with developmental 
disabilities' privacy interests, and honor a recipient's request to 
terminate an interview. This access is for the purpose of:
    (i) Providing information, training, and referral for programs 
addressing the needs of individuals with developmental disabilities, 
information and training about individual rights, and the protection and 
advocacy services available from the P&A system, including the name, 
address, and telephone number of the P&A system. P&As shall be permitted 
to post, in an area which individuals with developmental disabilities 
receive services, a poster which states the protection and advocacy 
services available from the P&A system, including the name, address and 
telephone number of the P&A system.
    (ii) Monitoring compliance with respect to the rights and safety of 
individuals with developmental disabilities; and
    (iii) Access including, but is not limited to inspecting, viewing, 
photographing, and video recording all areas of a service provider's 
premises or under the service provider's supervision or control which 
are used by individuals with developmental disabilities or are 
accessible to them. This authority does not include photographing or 
video recording individuals with developmental disabilities unless they 
consent or State laws allow such activities.
    (d) Unaccompanied access to individuals with developmental 
disabilities including, but not limited to, the opportunity to meet and 
communicate privately with individuals regularly, both formally and 
informally, by telephone, mail and in person. This authority shall also 
include the opportunity to meet, communicate with, or interview any 
individual with a developmental disability, including a person thought 
to be the subject of abuse, who might be reasonably believed by the P&A 
system to have knowledge of an incident under investigation or non-
compliance with respect to the rights and safety of individuals with 
developmental disabilities. Except as otherwise required by law the P&A 
shall not be required to provide the name or other identifying 
information regarding the individual with a disability with whom it 
plans to meet; neither may the P&A be required to justify or explain its 
interaction with such persons.



Sec. 1326.28  Confidentiality of State Protection and Advocacy System
records.

    (a) A P&A shall, at minimum, comply with the confidentiality 
provisions of all applicable Federal and State laws.
    (b) Records maintained by the P&A system are the property of the P&A 
system which must protect them from loss, damage, tampering, 
unauthorized use, or tampering. The P&A system must:
    (1) Except as provided elsewhere in this section, keep confidential 
all records and information, including information contained in any 
automated electronic database pertaining to:
    (i) Clients;
    (ii) Individuals who have been provided general information or 
technical assistance on a particular matter;

[[Page 207]]

    (iii) The identity of individuals who report incidents of abuse or 
neglect, or who furnish information that forms the basis for a 
determination that probable cause exists; and
    (iv) Names of individuals who have received services, supports or 
other assistance, and who provided information to the P&A for the 
record.
    (v) Peer review records.
    (2) Have written policies governing the access, storage, duplication 
and release of information from client records, including the release of 
information peer review records.
    (3) Obtain written consent from the client, or from his or her legal 
representative; individuals who have been provided general information 
or technical assistance on a particular matter; and individuals who 
furnish reports or information that form the basis for a determination 
of probable cause, before releasing information concerning such 
individuals to those not otherwise authorized to receive it.
    (c) Nothing in this subpart shall prevent the P&A system from 
issuing a public report of the results of an investigation which 
maintains the confidentiality of the individuals listed in paragraph 
(a)(1) of this section, or reporting the results of an investigation in 
a manner which maintains the confidentiality of such individuals, to 
responsible investigative or enforcement agencies should an 
investigation reveal information concerning the service provider, its 
staff, or employees warranting possible sanctions or corrective action. 
This information may be reported to agencies responsible for service 
provider licensing or accreditation, employee discipline, employee 
licensing or certification, or criminal investigation or prosecution.
    (d) Notwithstanding the confidentiality requirements of this 
section, the P&A may make a report to investigative or enforcement 
agencies, as described in paragraph (b) of this section, which reveals 
the identity of an individual with developmental disability, and 
information relating to his or her status or treatment:
    (1) When the system has received a complaint that the individual has 
been or may be subject to abuse and neglect, or has probable cause 
(which can be the result of monitoring or other activities including 
media reports and newspaper articles) to believe that such individual 
has been or may be subject to abuse or neglect;
    (2) When the system determines that there is probable cause to 
believe the health or safety of the individual is in serious and 
immediate jeopardy; or
    (3) In any case of the death of an individual whom the system 
believes may have had a developmental disability.



    Subpart D_Federal Assistance to State Councils on Developmental 
                              Disabilities



Sec. 1326.30  State plan requirements.

    (a) In order to receive Federal funding under this subpart, each 
State Developmental Disabilities Council must prepare and submit a State 
plan which meets the requirements of sections 124 and 125 of the Act (42 
U.S.C. 15024 and 15025), and the applicable regulation. Development of 
the State plan and its periodic updating are the responsibility of the 
State Council on Developmental Disabilities. As provided in section 
124(d) of the Act, the Council shall provide opportunities for public 
input and review (in accessible formats and plain language 
requirements), and will consult with the Designated State Agency to 
determine that the plan is consistent with applicable State laws, and 
obtain appropriate State plan assurances.
    (b) Failure to comply with the State plan requirements may result in 
the loss of Federal funds as described in section 127 of the Act (42 
U.S.C. 15027). The Secretary, or his or her designee, must provide 
reasonable notice and an opportunity for a hearing to the Council and 
the Designated State Agency before withholding any payments for 
planning, administration, and services.
    (c) The State plan must be submitted through the designated system 
by AIDD which is used to collect quantifiable and qualifiable 
information from the State Councils on Developmental Disabilities. The 
plan must:
    (1) Identify the agency or office in the State designated to support 
the Council in accordance with section

[[Page 208]]

124(c)(2) and 125(d) of the Act. The Designated State Agency shall 
provide required assurances and support services requested from and 
negotiated with the Council.
    (2) For a year covered by the State plan, include for each area of 
emphasis under which a goal or goals have been identified, the measures 
of progress the Council has established or is required to apply in its 
progress in furthering the purpose of the Developmental Disabilities 
Assistance and Bill of Rights Act through advocacy, capacity building, 
and systemic change activities.
    (3) Provide for the establishment and maintenance of a Council in 
accordance with section 125 of the Act and describe the membership of 
such Council. The non-State agency members of the Council shall be 
subject to term limits to ensure rotating membership.
    (d) The State plan must be updated during the five-year period when 
substantive changes are contemplated in plan content, including changes 
under paragraph (c)(2) of this section.
    (e) The State plan may provide for funding projects to demonstrate 
new approaches to direct services that enhance the independence, 
productivity, and integration and inclusion into the community of 
individuals with developmental disabilities. Direct service 
demonstrations must be short-term, with a strategy to locate on-going 
funding from other sources after five years. Any State desiring to 
receive assistance beyond five years, under this subtitle, shall include 
in the State plan the information listed in paragraphs (e)(1) through 
(3) of this section, and AIDD reserves the right as the overseeing 
agency to deny the continuation of the demonstration project beyond five 
years.
    (1) The estimated period for the project's continued duration;
    (2) Justifications of why the project cannot be funded by the State 
or other sources and should receive continued funding; and
    (3) Provide data outcomes showing evidence of success.
    (f) The State plan may provide for funding of other demonstration 
projects or activities, including but not limited to outreach, training, 
technical assistance, supporting and educating communities, interagency 
collaboration and coordination, coordination with related councils, 
committees and programs, barrier elimination, systems design and 
redesign, coalition development and citizen participation, and informing 
policymakers. Demonstrations must be short-term, with a strategy to 
locate on-going funding from other sources after five years. Any State 
desiring to receive assistance beyond five years, under this subtitle, 
shall include in the State plan the information listed in paragraphs 
(f)(1) through (3) of this section, and AIDD reserves the right as the 
overseeing agency to deny the continuation of the demonstration project 
beyond five years.
    (1) The estimated period for the project's continued duration;
    (2) Justifications on why the project cannot be funded by the State 
or other resources and should receive continued funding; and
    (3) Provide data showing evidence of success.
    (g) The State plan must contain assurances that are consistent with 
section 124 of the Act (42 U.S.C. 15024).



Sec. 1326.31  State plan submittal and approval.

    (a) The Council shall issue a public notice about the availability 
of the proposed State plan or State plan amendment(s) for comment. The 
notice shall be published in formats accessible to individuals with 
developmental disabilities and the general public (e.g. public forums, 
Web sites, newspapers, and other current technologies) and shall provide 
a 45-day period for public review and comment. The Council shall take 
into account comments submitted within that period, and respond in the 
State plan to significant comments and suggestions. A summary of the 
Council's responses to State plan comments shall be submitted with the 
State plan and made available for public review. This document shall be 
made available in accessible formats upon request.
    (b) The State plan or amendment must be submitted to AIDD 45 days 
prior to the fiscal year for which it is applicable.
    (c) Failure to submit an approvable State plan or amendment prior to 
the

[[Page 209]]

Federal fiscal year for which it is applicable may result in the loss of 
Federal financial participation. Plans received during a quarter of the 
Federal fiscal year are approved back to the first day of the quarter so 
costs incurred from that point forward are approvable. Costs resulting 
from obligations incurred during the period of the fiscal year for which 
an approved plan is not in effect are not eligible for Federal financial 
participation.
    (d) The Secretary, or his or her designee, must approve any State 
plan or plan amendment provided it meets the requirements of the Act and 
this regulation.



Sec. 1326.32  Periodic reports: Federal assistance to State Councils
on Developmental Disabilities.

    (a) The Governor or appropriate State financial officer must submit 
financial status reports (AIDD-02B) on the programs funded under this 
subpart semiannually.
    (b) By January 1 of each year, the State Council on Developmental 
Disabilities shall submit to AIDD, an Annual Program Performance Report 
through the system established by AIDD. In order to be accepted by AIDD, 
reports must meet the requirements of section 125(c)(7) of the Act (42 
U.S.C. 15025) and the applicable regulations, include the information on 
its program necessary for the Secretary, or his or her designee, to 
comply with section 105(1), (2), and (3) of the Act (42 U.S.C. 15005), 
and any other information requested by AIDD. Each Report shall contain 
information about the progress made by the Council in achieving its 
goals including:
    (1) A description of the extent to which the goals were achieved;
    (2) A description of the strategies that contributed to achieving 
the goals;
    (3) To the extent to which the goals were not achieved, a 
description of factors that impeded the achievement;
    (4) Separate information on the self-advocacy goal described in 
section 124(c)(4)(A)(ii) of the Act (42 U.S.C. 15024);
    (5) As appropriate, an update on the results of the comprehensive 
review and analysis of the extent to which services, supports, and other 
assistance are available to individuals with developmental disabilities 
and their families, including the extent of unmet needs for services, 
supports, and other assistance for those individuals and their families, 
in the State as required in section 124(c)(3) of the Act (42 U.S.C. 
15024);
    (6) Information on individual satisfaction with Council supported or 
conducted activities;
    (7) A description of the adequacy of health care and other services, 
supports, and assistance that individuals with developmental 
disabilities in Intermediate Care Facilities for Individuals with 
Intellectual Disabilities (ICF/IID) receive;
    (8) To the extent available, a description of the adequacy of health 
care and other services, supports, and assistance received by 
individuals with developmental disabilities served through home and 
community-based waivers (authorized under section 1915(c) of the Social 
Security Act);
    (9) An accounting of the funds paid to the State awarded under the 
DD Council program;
    (10) A description of resources made available to carry out 
activities to assist individuals with developmental disabilities 
directly attributable to Council actions;
    (11) A description of resources made available for such activities 
that are undertaken by the Council in collaboration with other entities; 
and
    (12) A description of the method by which the Council will widely 
disseminate the annual report to affected constituencies and the general 
public and will assure that the report is available in accessible 
formats.
    (c) Each Council must include in its Annual Program Performance 
Report information on its achievement of the measures of progress.



Sec. 1326.33  Protection of employees interests.

    (a) Based on section 124(c)(5)(J) of the Act (42 U.S.C. 
15024(c)(5)(J)), the State plan must assure fair and equitable 
arrangements to protect the interest of all institutional employees 
affected by actions under the plan to provide community living 
activities. The State

[[Page 210]]

must inform employees of the State's decision to provide for community 
living activities. Specific arrangements for the protection of affected 
employees must be developed through negotiations between the appropriate 
State authorities and employees or their representatives.
    (b) Fair and equitable arrangements must include procedures that 
provide for the impartial resolution of disputes between the State and 
an employee concerning the interpretation, application, and enforcement 
of protection arrangements. To the maximum extent practicable, these 
arrangements must include provisions for:
    (1) The preservation of rights and benefits;
    (2) Guaranteeing employment to employees affected by action under 
the plan to provide alternative community living arrangements; and
    (3) Employee training and retraining programs.



Sec. 1386.34  Designated State Agency.

    (a) The Designated State Agency shall provide the required 
assurances and other support services as requested and negotiated by the 
Council. These include:
    (1) Provision of financial reporting and other services as provided 
under section 125(d)(3)(D) of the Act; and
    (2) Information and direction, as appropriate, on procedures on the 
hiring, supervision, and assignment of staff in accordance with State 
law.
    (b) If the State Council on Developmental Disabilities requests a 
review by the Governor (or State legislature, if applicable) of the 
Designated State Agency, the Council must provide documentation of the 
reason for change, and recommend a new preferred Designated State Agency 
by the Governor (or State legislature, if applicable).
    (c) After the review is completed by the Governor (or State 
legislature, if applicable), and if no change is made, a majority of the 
non-State agency members of the Council may appeal to the Secretary, or 
his or her designee, for a review of the Designated State Agency if the 
Council's independence as an advocate is not assured because of the 
actions or inactions of the Designated State agency.
    (d) The following steps apply to the appeal of the Governor's (or 
State legislature, if applicable) designation of the Designated State 
Agency.
    (1) Prior to an appeal to the Secretary, or his or her designee, the 
State Council on Developmental Disabilities, must give a 30 day written 
notice, by certified mail, to the Governor (or State legislature, if 
applicable) of the majority of non-State members' intention to appeal 
the designation of the Designated State Agency.
    (2) The appeal must clearly identify the grounds for the claim that 
the Council's independence as an advocate is not assured because of the 
action or inactions of the Designated State Agency.
    (3) Upon receipt of the appeal from the State Council on 
Developmental Disabilities, the Secretary, or his or her designee, will 
notify the State Council on Developmental Disabilities and the Governor 
(or State legislature, if applicable), by certified mail, that the 
appeal has been received and will be acted upon within 60 days. The 
Governor (or State legislature, if applicable) shall within 10 working 
days from the receipt of the Secretary's, or his or her designated 
person's, notification provide written comments to the Secretary, or his 
or her designee, (with a copy sent by registered or certified mail to 
the Council) on the claims in the Council's appeal. Either party may 
request, and the Secretary, or his or her designee, may grant, an 
opportunity for an informal meeting with the Secretary, or his or her 
designee, at which representatives from both parties will present their 
views on the issues in the appeal. The meeting will be held within 20 
working days of the submission of written comments by the Governor (or 
State legislature, if applicable). The Secretary, or his or her 
designee, will promptly notify the parties of the date and place of the 
meeting.
    (4) The Secretary, or his or her designee, will review the issue(s) 
and provide a final written decision within 60 days following receipt of 
the appeal from the State Council on Developmental Disabilities. If the 
determination is made that the Designated State Agency should be 
redesignated, the

[[Page 211]]

Governor (or State legislature, if applicable) must provide written 
assurance of compliance within 45 days from receipt of the decision.
    (5) Anytime during this appeals process the State Council on 
Developmental Disabilities may withdraw such request if resolution has 
been reached with the Governor (or State legislature, if applicable) on 
the Designated State Agency. The Governor (or State legislature, if 
applicable) must notify the Secretary, or his or her designee, in 
writing of such a decision.
    (e) The Designated State Agency may authorize the Council to 
contract with State agencies other than the Designated State Agency to 
perform functions of the Designated State Agency.



Sec. 1326.35  Allowable and non-allowable costs for Federal 
assistance to State Councils on Developmental Disabilities.

    (a) Under this subpart, Federal funding is available for costs 
resulting from obligations incurred under the approved State plan for 
the necessary expenses of administering the plan, which may include the 
establishment and maintenance of the State Council, and all programs, 
projects, and activities carried out under the State plan.
    (b) Expenditures which are not allowable for Federal financial 
participation are:
    (1) Costs incurred by institutions or other residential or non-
residential programs which do not comply with the Congressional findings 
with respect to the rights of individuals with developmental 
disabilities in section 109 of the Act (42 U.S.C. 15009).
    (2) Costs incurred for activities not provided for in the approved 
State plan; and
    (3) Costs not allowed under other applicable statutes, Departmental 
regulations, or issuances of the Office of Management and Budget.
    (c) Expenditure of funds that supplant State and local funds are not 
allowed. Supplanting occurs when State or local funds previously used to 
fund activities under the State plan are replaced by Federal funds for 
the same purpose. However, supplanting does not occur if State or local 
funds are replaced with Federal funds for a particular activity or 
purpose in the approved State plan if the replaced State or local funds 
are then used for other activities or purposes in the approved State 
plan.
    (d) For purposes of determining aggregate minimum State share of 
expenditures, there are three categories of expenditures:
    (1) Expenditures for projects or activities undertaken directly by 
the Council and Council staff to implement State plan activities, as 
described in section 126(a)(3) of the Act, require no non-Federal 
aggregate of the necessary costs of such activities.
    (2) Expenditures for projects whose activities or products target 
individuals with developmental disabilities who live in urban or rural 
poverty areas, as determined by the Secretary, or his or her designee, 
but not carried out directly by the Council and Council staff, as 
described in section 126(a)(2) of the Act, shall have non-Federal 
funding of at least 10 percent in the aggregate of the necessary costs 
of such projects.
    (3) All other projects not directly carried out by the Council and 
Council staff shall have non-Federal funding of at least 25 percent in 
the aggregate of the necessary costs of such projects.
    (e) The Council may vary the non-Federal funding required on a 
project-by-project, activity-by-activity basis (both poverty and non-
poverty activities), including requiring no non-Federal funding from 
particular projects or activities as the Council deems appropriate so 
long as the requirement for aggregate non-Federal funding is met.



Sec. 1326.36  Final disapproval of the State plan or plan amendments.

    The Department will disapprove any State plan or plan amendment only 
after the following procedures have been complied with:
    (a) The State plan has been submitted to AIDD for review. If after 
contacting the State on issues with the plan with no resolution, a 
detailed written analysis of the reasons for recommending disapproval 
shall be prepared and provided to the State Council and State Designated 
Agency.
    (b) Once the Secretary, or his or her designee, has determined that 
the

[[Page 212]]

State plan, in whole or in part, is not approvable, notice of this 
determination shall be sent to the State with appropriate references to 
the records, provisions of the statute and regulations, and all relevant 
interpretations of applicable laws and regulations. The notification of 
the decision must inform the State of its right to appeal in accordance 
with subpart E of this part.
    (c) The Secretary's, or his or her designee's, decision has been 
forwarded to the State Council and its Designated State Agency by 
certified mail with a return receipt requested.
    (d) A State has filed its request for a hearing with the Secretary, 
or his or her designee, within 21 days of the receipt of the decision. 
The request for a hearing must be sent by certified mail to the 
Secretary, or his or her designee. The date of mailing the request is 
considered the date of filing if it is supported by independent evidence 
of mailing. Otherwise the date of receipt shall be considered the date 
of filing.



  Subpart E_Practice and Procedure for Hearings Pertaining to States' 
 Conformity and Compliance With Developmental Disabilities State Plans, 
                    Reports, and Federal Requirements

                                 General



Sec. 1326.80  Definitions.

    For purposes of this subpart:
    Payment or allotment. The term ``payment'' or ``allotment'' means an 
amount provided under part B or C of the Developmental Disabilities 
Assistance and Bill or Rights Act of 2000. This term includes Federal 
funds provided under the Act irrespective of whether the State must 
match the Federal portion of the expenditure. This term shall include 
funds previously covered by the terms ``Federal financial 
participation,'' ``the State's total allotment,'' ``further payments,'' 
``payments,'' ``allotment'' and ``Federal funds.''
    Presiding officer. The term ``presiding officer'' means anyone 
designated by the Secretary to conduct any hearing held under this 
subpart. The term includes the Secretary, or the Secretary's designee, 
if the Secretary or his or her designee presides over the hearing. For 
purposes of this subpart the Secretary's ``designee'' refers to a 
person, such as the Administrator of ACL, who has been delegated broad 
authority to carry out all or some of the authorizing statute. The term 
designee does not refer to a presiding officer designated only to 
conduct a particular hearing or hearings.



Sec. 1326.81  Scope of rules.

    (a) The rules of procedures in this subpart govern the practice for 
hearings afforded by the Department to States pursuant to sections 124, 
127, and 143 of the Act. (42 U.S.C. 15024, 15027 and 15043).
    (b) Nothing in this part is intended to preclude or limit 
negotiations between the Department and the State, whether before, 
during, or after the hearing to resolve the issues that are, or 
otherwise would be, considered at the hearing. Negotiation and 
resolution of issues are not part of the hearing, and are not governed 
by the rules in this subpart, except as otherwise provided in this 
subpart.



Sec. 1326.82  Records to the public.

    All pleadings, correspondence, exhibits, transcripts of testimony, 
exceptions, briefs, decisions, and other documents filed in the docket 
in any proceeding are subject to public inspection.



Sec. 1326.83  Use of gender and number.

    As used in this subpart, words importing the singular number may 
extend and be applied to several persons or things, and vice versa. 
Words importing either gender may be applied to the other gender or to 
organizations.



Sec. 1326.84  Suspension of rules.

    Upon notice to all parties, the Secretary or the Secretary's 
designee may modify or waive any rule in this subpart, unless otherwise 
expressly provided, upon determination that no party will be unduly 
prejudiced and justice will be served.

[[Page 213]]



Sec. 1326.85  Filing and service of papers.

    (a) All papers in the proceedings must be filed with the designated 
individual in an original and two copies. Only the originals of exhibits 
and transcripts of testimony need be filed.
    (b) Copies of papers in the proceedings must be served on all 
parties by personal delivery or by mail. Service on the party's 
designated representative is deemed service upon the party.

                 Preliminary Matters--Notice and Parties



Sec. 1326.90  Notice of hearing or opportunity for hearing.

    Proceedings are commenced by mailing a notice of hearing or 
opportunity for hearing from the Secretary, or his or her designee, to 
the State Council on Developmental Disabilities and the Designated State 
Agency, or to the State Protection and Advocacy System or designating 
official. The notice must state the time and place for the hearing and 
the issues that will be considered. The notice must be published in the 
Federal Register.



Sec. 1326.91  Time of hearing.

    The hearing must be scheduled not less than 30 days, nor more than 
60 days after the notice of the hearing is mailed to the State.



Sec. 1326.92  Place.

    The hearing must be held on a date and at a time and place 
determined by the Secretary, or his or her designee with due regard for 
convenience, and necessity of the parties or their representatives. The 
site of the hearing shall be accessible to individuals with 
disabilities.



Sec. 1326.93  Issues at hearing.

    (a) Prior to a hearing, the Secretary or his or her designee 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 
Secretary or his or her designee.
    (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 Secretary, or his or her designee, 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 
Secretary, or his or her designee, 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 Protection and Advocacy System, the Secretary, 
or his or her designee, 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 hearing 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 Secretary, or his or her 
designee, 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 Protection and 
Advocacy System with Federal requirements, the same procedure set forth 
in paragraph (c)(2) of this section must be followed with respect to any 
report or evidence resulting in a conclusion by the Secretary, or his or 
her designee, 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

[[Page 214]]

in Sec. 1326.90 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.



Sec. 1326.94  Request to participate in hearing.

    (a) The Department, the State, the State Council on Developmental 
Disabilities, the Designated State Agency, and the State Protection and 
Advocacy System, as appropriate, are parties to the hearing without 
making a specific request to participate.
    (b)(1) Other individuals or groups may be recognized as parties if 
the issues to be considered at the hearing have caused them injury and 
their interests are relevant to the issues in the hearing.
    (2) Any individual or group wishing to participate as a party must 
file a petition with the designated individual within 15 days after 
notice of the hearing has been published in the Federal Register, and 
must serve a copy on each party of record at that time in accordance 
with Sec. 1326.85(b). The petition must concisely state:
    (i) Petitioner's interest in the proceeding;
    (ii) Who will appear for petitioner;
    (iii) The issues the petitioner wishes to address; and
    (iv) Whether the petitioner intends to present witnesses.
    (c)(1) Any interested person or organization wishing to participate 
as amicus curiae must file a petition with the designated individual 
before the commencement of the hearing. The petition must concisely 
state:
    (i) The petitioner's interest in the hearing;
    (ii) Who will represent the petitioner; and
    (iii) The issues on which the petitioner intends to present 
argument.
    (2) The presiding officer may grant the petition if he or she finds 
that the petitioner has a legitimate interest in the proceedings and 
that such participation will not unduly delay the outcome and may 
contribute materially to the proper disposition of the issues.
    (3) An amicus curiae may present a brief oral statement at the 
hearing at the point in the proceedings specified by the presiding 
officer. It may submit a written statement of position to the presiding 
officer prior to the beginning of a hearing and must serve a copy on 
each party. It also may submit a brief or written statement at such time 
as the parties submit briefs and must serve a copy on each party.

                           Hearing Procedures



Sec. 1326.100  Who presides.

    (a) The presiding officer at a hearing must be the Secretary, his or 
her designee, or another person specifically designated for a particular 
hearing or hearings.
    (b) The designation of a presiding officer must be in writing. A 
copy of the designation must be served on all parties and amici curiae.



Sec. 1326.101  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;
    (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;

[[Page 215]]

    (8) Receive, rule on, exclude, or limit evidence or discovery;
    (9) Fix the time for filing motions, petitions, briefs, or other 
items in matters pending before him or her;
    (10) If the presiding officer is the Secretary, or his or her 
designee, make a final decision;
    (11) If the presiding officer is a person other than the Secretary 
or his or her designee, the presiding officer shall certify the entire 
record, including recommended findings and proposed decision, to the 
Secretary or his or her designee; and
    (12) Take any action authorized by the rules in this subpart or 5 
U.S.C. 551-559.
    (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 Secretary or 
his or her designee, 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.



Sec. 1326.102  Rights of parties.

    All parties may:
    (a) Appear by counsel, or other authorized representative, in all 
hearing proceedings;
    (b) Participate in any prehearing conference held by the presiding 
officer;
    (c) Agree to stipulations of facts which will be made a part of the 
record;
    (d) Make opening statements at the hearing;
    (e) Present relevant evidence on the issues at the hearing;
    (f) Present witnesses who then must be available for cross-
examination by all other parties;
    (g) Present oral arguments at the hearing; and
    (h) Submit written briefs, proposed findings of fact, and proposed 
conclusions of law, after the hearing.



Sec. 1326.103  Discovery.

    The Department and any party named in the notice issued pursuant to 
Sec. 1386.90 has the right to conduct discovery (including depositions) 
against opposing parties as provided by the Federal Rules of Civil 
Procedure. There is no fixed rule on priority of discovery. Upon written 
motion, the presiding officer must promptly rule upon any objection to 
discovery action. The presiding officer also has the power to grant a 
protective order or relief to any party against whom discovery is sought 
and to restrict or control discovery so as to prevent undue delay in the 
conduct of the hearing. Upon the failure of any party to make discovery, 
the presiding officer may issue any order and impose any sanction other 
than contempt orders authorized by Rule 37 of the Federal Rules of Civil 
Procedure.



Sec. 1326.104  Evidentiary purpose.

    The hearing is directed to receiving factual evidence and expert 
opinion testimony related to the issues in the proceeding. Argument will 
not be received in evidence; rather, it must be presented in statements, 
memoranda, or briefs, as directed by the presiding officer. Brief 
opening statements, which shall be limited to a statement of the party's 
position and what it intends to prove, may be made at hearings.



Sec. 1326.105  Evidence.

    (a) Testimony. Testimony by witnesses at the hearing is given orally 
under oath or affirmation. Witnesses must be available at the hearing 
for cross-examination by all parties.
    (b) Stipulations and exhibits. Two or more parties may agree to 
stipulations of fact. Such stipulations, or any exhibit proposed by any 
party, must be exchanged at the prehearing conference or at a different 
time prior to the hearing if the presiding officer requires it.
    (c) Rules of evidence. Technical rules of evidence do not apply to 
hearings conducted pursuant to this subpart,

[[Page 216]]

but rules or principles designed to assure production of the most 
credible evidence available and to subject testimony to test by cross-
examination are applied where reasonably necessary by the presiding 
officer. A witness may be cross-examined on any matter material to the 
proceeding without regard to the scope of his or her direct examination. 
The presiding officer may exclude irrelevant, immaterial, or unduly 
repetitious evidence. All documents and other evidence offered or taken 
for the record is open to examination by the parties and opportunity 
must be given to refute facts and arguments advanced on either side of 
the issues.



Sec. 1326.106  Exclusion from hearing for misconduct.

    Disrespectful, disorderly, or rebellious language or contemptuous 
conduct, refusal to comply with directions, or continued use of dilatory 
tactics by any person at the hearing before a presiding officer shall 
constitute grounds for immediate exclusion of such person from the 
hearing by the presiding officer.



Sec. 1326.107  Unsponsored written material.

    Letters expressing views or urging action and other unsponsored 
written material regarding matters in issue in a hearing is placed in 
the correspondence section of the docket of the proceeding. This 
material is not deemed part of the evidence or record in the hearing.



Sec. 1326.108  Official transcript.

    The Department will designate the official reporter for all 
hearings. The official transcript of testimony taken, together with any 
stipulations, exhibits, briefs, or memoranda of law filed with them is 
filed with the Department. Transcripts of testimony in hearings may be 
obtained from the official reporter by the parties and the public at 
rates not to exceed the maximum rates fixed by the contract between the 
Department and the reporter. Upon notice to all parties, the presiding 
officer may authorize corrections to the transcript which involve 
matters of substance. Transcripts must be taken by stenotype machine and 
not be voice recording devices, unless otherwise agreed by all of the 
parties and the presiding officer.



Sec. 1326.109  Record for decision.

    The transcript of testimony, exhibits, and all papers and requests 
filed in the proceedings, except the correspondence section of the 
docket, including rulings and any recommended or initial decision, 
constitute the exclusive record for decision.

                   Post-Hearing Procedures, Decisions



Sec. 1386.110  Post-hearing briefs.

    The presiding officer must fix the time for filing post-hearing 
briefs. This time may not exceed 30 days after termination of the 
hearing and receipt of the transcript. Briefs may contain proposed 
findings of fact and conclusions of law. If permitted, reply briefs may 
be filed no later than 15 days after filing of the post-hearing briefs.



Sec. 1326.111  Decisions following hearing.

    (a) If the Secretary, or his or her designee, is the presiding 
officer, he or she must issue a decision within 60 days after the time 
for submission of post-hearing briefs has expired.
    (b)(1) If the presiding officer is another person designated for a 
particular hearing or hearings, he or she must, within 30 days after the 
time for submission of post-hearing briefs has expired, certify the 
entire record to the Secretary (or his or her designee) including the 
recommended findings and proposed decision.
    (2) The Secretary, or his or her designee, must serve a copy of the 
recommended findings and proposed decision upon all parties and amici.
    (3) Any party may, within 20 days, file exceptions to the 
recommended findings and proposed decision and supporting brief or 
statement with the Secretary, or his or her designee.
    (4) The Secretary, or his or her designee, must review the 
recommended decision and, within 60 days of its issuance, issue his or 
her own decision.
    (c) If the Secretary, or his or her designee, concludes:
    (1) In the case of a hearing pursuant to sections 124, 127, or 143 
of the Act, that a State plan or the activities of

[[Page 217]]

the State's Protection and Advocacy System does not comply with Federal 
requirements, he or she shall also specify whether the State's payment 
or allotment for the fiscal year will not be authorized for the State or 
whether, in the exercise of his or her discretion, the payment or 
allotment will be limited to the parts of the State plan or the 
activities of the State's Protection and Advocacy System not affected by 
the noncompliance.
    (2) In the case of a hearing pursuant to section 127 of the Act that 
the State is not complying with the requirements of the State plan, he 
or she also must specify whether the State's payment or allotment will 
be made available to the State or whether, in the exercise of his or her 
discretion, the payment or allotment will be limited to the parts of the 
State plan not affected by such noncompliance. The Secretary, or his or 
her designee, may ask the parties for recommendations or briefs or may 
hold conferences of the parties on these questions.
    (d) The decision of the Secretary, or his or her designee, under 
this section is the final decision of the Secretary and constitutes 
``final agency action'' within the meaning of 5 U.S.C. 704 and the 
``Secretary's action'' within the meaning of section 128 of the Act (42 
U.S.C. 15028). The Secretary's, or his or her designee's, decision must 
be promptly served on all parties and amici.



Sec. 1326.112  Effective date of decision by the Secretary.

    (a) If, in the case of a hearing pursuant to section 124 of the Act, 
the Secretary, or his or her designee, concludes that a State plan does 
not comply with Federal requirements, and the decision provides that the 
payment or allotment will be authorized but limited to parts of the 
State plan not affected by such noncompliance, the decision must specify 
the effective date for the authorization of the payment or allotment.
    (b) In the case of a hearing pursuant to sections 127 or 143 of the 
Act, if the Secretary, or his or her designee, concludes that the State 
is not complying with the requirements of the State plan or if the 
activities of the State's Protection and Advocacy System do not comply 
with Federal requirements, the decision that further payments or 
allotments will not be made to the State, or will be limited to the 
parts of the State plan or activities of the State Protection and 
Advocacy System not affected, must specify the effective date for 
withholding payments or allotments.
    (c) The effective date may not be earlier than the date of the 
decision of the Secretary, or his or her designee, and may not be later 
than the first day of the next calendar quarter.
    (d) The provision of this section may not be waived pursuant to 
Sec. 1386.84.



PART 1327_DEVELOPMENTAL DISABILITIES PROJECTS OF NATIONAL SIGNIFICANCE
--Table of Contents



    Authority: 42 U.S.C. 15001 et seq.

    Source: 80 FR 44807, July 27, 2015, unless otherwise noted. 
Redesignated and amended at 81 FR 35645, 35647.



Sec. 1327.1  General requirements.

    (a) All projects funded under this part must be of national 
significance and serve or relate to individuals with developmental 
disabilities to comply with subtitle E of the Act, sections 161-163 (42 
U.S.C. 15081-15083).
    (b) In general, Projects of National Significance (PNS) provide 
technical assistance, collect data, demonstrate exemplary and innovative 
models, disseminate knowledge at the local and national levels, and 
otherwise meet the goals of Projects of National Significance section 
161 (42 U.S.C. 15081).
    (c) Projects of National Significance may engage in one or more of 
the types of activities provided in section 161(2) of the Act.
    (d) In general, eligible applicants for PNS funding are public and 
private non-profit entities, 42 U.S.C. 15082, such as institutions of 
higher learning, State and local governments, and Tribal governments. 
The program announcements will specifically state any further 
eligibility requirements for the priority areas in the fiscal year.

[[Page 218]]

    (e) Faith-based organizations are eligible to apply for PNS funding, 
providing that the faith-based organizations meet the specific 
eligibility criteria contained in the program announcement for the 
fiscal year.



PART 1328_THE NATIONAL NETWORK OF UNIVERSITY CENTERS FOR EXCELLENCE 
IN DEVELOPMENTAL DISABILITIES, EDUCATION, RESEARCH, AND SERVICE--
Table of Contents



Sec.
1328.1 Definitions.
1328.2 Purpose.
1328.3 Core functions.
1328.4 National training initiatives on critical and emerging needs.
1328.5 Applications.
1328.6 Governance and administration.
1328.7 Five-year plan and annual report.

    Authority: 42 U.S.C. 15001 et seq.

    Source: 80 FR 44807, July 27, 2015, unless otherwise noted. 
Redesignated and amended at 81 FR 35645, 35647, June 3, 2016.



Sec. 1328.1  Definitions.

    States. For the purpose of this part, ``State'' means each of the 
several States of the United States, the District of Columbia, the 
Commonwealth of Puerto Rico, the United States Virgin Islands, and Guam.



Sec. 1328.2  Purpose.

    (a) The Secretary, or his or her designee awards grants to eligible 
entities designated as University Centers for Excellence in 
Developmental Disabilities Education, Research, and Service (``UCEDDs'', 
or ``Centers'') in each State to pay for the Federal share of the cost 
of the administration and operation of the Centers. Centers shall:
    (1) Provide leadership in, advise Federal, State, and community 
policymakers about, and promote opportunities for individuals with 
developmental disabilities to exercise self-determination, be 
independent, be productive, and be integrated and included in all facets 
of community life.
    (2) Be interdisciplinary education, research, and public service 
units of universities or public not-for-profit entities associated with 
universities that engage in core functions, described in Sec. 1388.3, 
addressing, directly or indirectly, one or more of the areas of 
emphasis, as defined in Sec. 1385.3 of this chapter.
    (b) To conduct National Training Initiatives on Critical and 
Emerging Needs as described in Sec. 1388.4.



Sec. 1328.3  Core functions.

    The Centers described in Sec. 1388.2 must engage in the core 
functions referred to in this section, which shall include:
    (a) Provision of interdisciplinary pre-service preparation and 
continuing education of students and fellows, which may include the 
preparation and continuing education of leadership, direct service, 
clinical, or other personnel to strengthen and increase the capacity of 
States and communities to achieve the purpose of the DD Act of 2000.
    (b) Provision of community services:
    (1) That provide training or technical assistance for individuals 
with developmental disabilities, their families, professionals, 
paraprofessionals, policy-makers, students, and other members of the 
community; and
    (2) That may provide services, supports, and assistance for the 
persons listed in paragraph (b)(1) of this section through demonstration 
and model activities.
    (c) Conduct of research, which may include basic or applied 
research, evaluation, and the analysis of public policy in areas that 
affect or could affect, either positively or negatively, individuals 
with developmental disabilities and their families.
    (d) Dissemination of information related to activities undertaken to 
address the purpose of the DD Act of 2000, especially dissemination of 
information that demonstrates that the network authorized under Subtitle 
D of the Act is a national and international resource that includes 
specific substantive areas of expertise that may be accessed and applied 
in diverse settings and circumstances.



Sec. 1328.4  National training initiatives on critical and emerging
needs.

    (a) Supplemental grant funds for National Training Initiatives 
(NTIs) on critical and emerging needs may be reserved when each Center 
described in

[[Page 219]]

section 152 of the DD Act has received a grant award of at least 
$500,000, adjusted for inflation.
    (b) The grants shall be awarded to Centers to pay for the Federal 
share of the cost of training initiatives related to the unmet needs of 
individuals with developmental disabilities and their families.
    (c) The grants shall be awarded on a competitive basis, and for 
periods of not more than 5 years.



Sec. 1328.5  Applications.

    (a) To be eligible to receive a grant under Sec. 1388.2 for a 
Center, an entity shall submit to the Secretary, or his or her designee, 
an application at such time, in such manner, and containing such 
information, as the Secretary, or his or her designee, may require for 
approval.
    (b) Each application shall describe a five-year plan that must 
include:
    (1) Projected goal(s) related to one or more areas of emphasis 
described in Sec. 1385.3 of this chapter for each of the core 
functions.
    (2) Measures of progress.
    (c) The application shall contain or be supported by reasonable 
assurances that the entity designated as the Center will:
    (1) Meet the measures of progress;
    (2) Address the projected goals, and carry out goal-related 
activities, based on data driven strategic planning and in a manner 
consistent with the objectives of subtitle D of the Act, that:
    (i) Are developed in collaboration with the Consumer Advisory 
Committee established pursuant to paragraph (c)(5) of this section;
    (ii) Are consistent with, and to the extent feasible complement and 
further, the Council goals contained in the State plan submitted under 
section 124 of the DD Act of 2000 and the goals of the Protection and 
Advocacy System established under section 143 of the DD Act of 2000; and
    (iii) Will be reviewed and revised annually as necessary to address 
emerging trends and needs.
    (3) Use the funds made available through the grant to supplement, 
and not supplant, the funds that would otherwise be made available for 
activities described in Sec. 1388.2(a)(1) and (2).
    (4) Protect, consistent with the policy specified in section 101(c) 
of the DD Act of 2000 the legal and human rights of all individuals with 
developmental disabilities (especially those individuals under State 
guardianship who are involved in activities carried out under programs 
assisted under subtitle D of the Act).
    (5) Establish a Consumer Advisory Committee:
    (i) Of which a majority of the members shall be individuals with 
developmental disabilities and family members of such individuals;
    (ii) That is comprised of:
    (A) Individuals with developmental disabilities and related 
disabilities;
    (B) Family members of individuals with developmental disabilities;
    (C) A representative of the State Protection and Advocacy System;
    (D) A representative of the State Council on Developmental 
Disabilities;
    (E) A representative of a self-advocacy organization described in 
section 124(c)(4)(A)(ii)(I) of the DD Act of 2000 (42 U.S.C. 
15024(c)(4)(A)(ii)(I)); and
    (F) Representatives of organizations that may include parent 
training and information centers assisted under section 671or 672 of the 
Individuals with Disabilities Education Act (20 U.S.C. 1471, 1472), 
entities carrying out activities authorized under section 104 or 105 of 
the Assistive Technology Act of 1998 (29 U.S.C. 3003, 3004), relevant 
State agencies, and other community groups concerned with the welfare of 
individuals with developmental disabilities and their families.
    (iii) That reflects the racial and ethnic diversity of the State;
    (iv) That shall:
    (A) Consult with the Director of the Center regarding the 
development of the five-year plan;
    (B) Participate in an annual review of, and comment on, the progress 
of the Center in meeting the projected goals contained in the plan;
    (C) Make recommendations to the Director of the Center regarding any 
proposed revisions of the plan that might be necessary; and
    (v) Meet as often as necessary to carry out the role of the 
committee, but at a minimum twice during each grant year.

[[Page 220]]

    (6) To the extent possible, utilize the infrastructure and resources 
obtained through funds made available under the grant to leverage 
additional public and private funds to successfully achieve the 
projected goals developed in the five-year plan;
    (7) Have a director with appropriate academic credentials, 
demonstrated leadership, expertise regarding developmental disabilities, 
significant experience in managing grants and contracts, and the ability 
to leverage public and private funds; and
    (i) Allocate adequate staff time to carry out activities related to 
each of the core functions described in Sec. 1388.3.
    (ii) [Reserved]
    (8) Educate, and disseminate information related to the purpose of 
the DD Act of 2000 to the legislature of the State in which the Center 
is located, and to Members of Congress from such State.
    (d) All applications submitted under this section shall be subject 
to technical and qualitative review by peer review groups as described 
under paragraph (d)(1) of this section.
    (1) Each peer review group shall include such individuals with 
disabilities and parents, guardians, or advocates of or for individuals 
with developmental disabilities, as are necessary to carry out this 
section.
    (2) [Reserved]
    (e)(1) The Federal share of the cost of administration or operation 
of a Center, or the cost of carrying out a training initiative, 
supported by a grant made under subtitle D of the Act may not be more 
than 75 percent of the necessary cost of such project, as determined by 
the Secretary, or his or her designee.
    (2) In the case of a project whose activities or products target 
individuals with developmental disabilities who live in an urban or 
rural poverty area, as determined by the Secretary, or his or her 
designee, the Federal share of the cost of the project may not be more 
than 90 percent of the necessary costs of the project, as determined by 
the Secretary, or his or her designee.



Sec. 1328.6  Governance and administration.

    (a) The UCEDD must be associated with, or an integral part of, a 
university and promote the independence, productivity, integration, and 
inclusion of individuals with developmental disabilities and their 
families.
    (b) The UCEDD must have a written agreement or charter with the 
university, or affiliated university that specifies the UCEDD 
designation as an official university component, the relationships 
between the UCEDD and other university components, the university 
commitment to the UCEDD, and the UCEDD commitment to the university.
    (c) Within the university, the UCEDD must maintain the autonomy and 
organizational structure required to carry out the UCEDD mission and 
provide for the mandated activities.
    (d) The UCEDD Director must report directly to, or be, a University 
Administrator who will represent the interests of the UCEDD within the 
University.
    (e) The University must demonstrate its support for the UCEDD 
through the commitment of financial and other resources.
    (f) UCEDD senior professional staff, including the UCEDD Director, 
Associate Director, Training Director, and Research Coordinator, must 
hold faculty appointments in appropriate academic departments of the 
host or an affiliated university, consistent with university policy. 
UCEDD senior professional staff must contribute to the university by 
participation on university committees, collaboration with other 
university departments, and other university community activities.
    (g) UCEDD faculty and staff must represent the broad range of 
disciplines and backgrounds necessary to implement the full inclusion of 
individuals with developmental disabilities in all aspects of society, 
consonant with the spirit of the Americans with Disabilities Act (ADA).
    (h) The management practices of the UCEDD, as well as the 
organizational structure, must promote the role of the UCEDD as a bridge 
between the University and the community. The UCEDD must actively 
participate in

[[Page 221]]

community networks and include a range of collaborating partners.
    (i) The UCEDD's Consumer Advisory Committee must meet regularly. The 
membership of the Consumer Advisory Committee must reflect the racial 
and ethnic diversity of the State or community in which the UCEDD is 
located. The deliberations of the Consumer Advisory Committee must be 
reflected in UCEDD policies and programs.
    (j) The UCEDD must maintain collaborative relationships with the 
SCDD and P&A. In addition, the UCEDD must be a permanent member of the 
SCDD and regularly participate in Council meetings and activities, as 
prescribed by the Act.
    (k) The UCEDD must maintain collaborative relationships and be an 
active participant with the UCEDD network and individual organizations.
    (l) The UCEDD must demonstrate the ability to leverage additional 
resources.
    (m) The university must demonstrate that the UCEDD have adequate 
space to carry out the mandated activities.
    (n) The UCEDD physical facility and all program initiatives 
conducted by the UCEDD must be accessible to individuals with 
disabilities as provided for by section 504 of the Rehabilitation Act 
and Titles II and III of the Americans with Disabilities Act.
    (o) The UCEDD must integrate the mandated core functions into its 
activities and
    programs and must have a written plan for each core function area.
    (p) The UCEDD must have in place a long range planning capability to 
enable it to respond to emergent and future developments in the field.
    (q) The UCEDD must utilize state-of-the-art methods, including the 
active participation of individuals, families and others of UCEDD 
programs and services to evaluate programs. The UCEDD must refine and 
strengthen its programs based on evaluation findings.
    (r) The UCEDD Director must demonstrate commitment to the field of 
developmental disabilities, leadership, and vision in carrying out the 
mission of the UCEDD.
    (s) The UCEDD must meet the ``Employment of Individuals with 
Disabilities'' requirements as described in section 107 of the Act.



Sec. 1328.7  Five-year plan and annual report.

    (a) As required by section 154(a)(2) of the DD Act of 2000 (42 
U.S.C. 15064), the application for core funding for a UCEDD shall 
describe a five-year plan, including a projected goal or goals related 
to one or more areas of emphasis for each of the core functions in 
section 153(a)(2) of the DD Act of 2000 (42 U.S.C.15063).
    (1) For each area of emphasis under which a goal has been 
identified, the UCEDD must state in its application the measures of 
progress with the requirements of the law and applicable regulation, in 
accordance with current practice.
    (2) If changes are made to the measures of progress established for 
a year, the five-year plan must be amended to reflect those changes and 
approved by AIDD upon review.
    (3) By July 30 of each year, a UCEDD shall submit an Annual Report, 
using the system established or funded by AIDD. In order to be accepted 
by AIDD, an Annual Report must meet the requirements of section 154(e) 
of the Act (42 U.S.C. 15064) and, the applicable regulations, and 
include the information necessary for the Secretary, or his or her 
designee, to comply with section 105(1), (2), and (3) of the Act (42 
U.S.C. 15005) and any other information requested by AIDD. The Report 
shall include information on progress made in achieving the UCEDD's 
goals for the previous year, including:
    (i) The extent to which the goals were achieved;
    (ii) A description of the strategies that contributed to achieving 
the goals;
    (iii) The extent to which the goals were not achieved;
    (iv) A detailed description of why goals were not met; and
    (v) An accounting of the manner in which funds paid to the UCEDD for 
a fiscal year were expended.
    (4) The Report also must include information on proposed revisions 
to the goals and a description of successful efforts to leverage funds, 
other than

[[Page 222]]

funds under the Act, to pursue goals consistent with the UCEDD program.
    (5) Each UCEDD must include in its Annual Report information on its 
achievement of the measures of progress.
    (b) [Reserved]



PART 1329_STATE INDEPENDENT LIVING SERVICES AND CENTERS FOR 
INDEPENDENT LIVING--Table of Contents



                      Subpart A_General Provisions

Sec.
1329.1 Programs covered.
1329.2 Purpose.
1329.3 Applicability of other regulations.
1329.4 Definitions.
1329.5 Indicators of minimum compliance.
1329.6 Reporting.
1329.7 Enforcement and appeals procedures.

                  Subpart B_Independent Living Services

1329.10 Authorized use of funds for Independent Living Services.
1329.11 DSE eligibility and application.
1329.12 Role of the designated State entity.
1329.13 Allotment of Federal funds for State independent living (IL) 
          services.
1329.14 Establishment of SILC.
1329.15 Duties of the SILC.
1329.16 Authorities of the SILC.
1329.17 General requirements for a State plan.

            Subpart C_Centers for Independent Living Program

1329.20 Centers for Independent Living (CIL) program.
1329.21 Continuation awards to entities eligible for assistance under 
          the CIL program.
1329.22 Competitive awards to new Centers for Independent Living.
1329.23 Compliance reviews.
1329.24 Training and technical assistance to Centers for Independent 
          Living.

    Authority: 29 U.S.C. 709; 42 U.S.C. 3515e.

    Source: 81 FR 74694, Oct. 27, 2016, unless otherwise noted.



                      Subpart A_General Provisions



Sec. 1329.1  Programs covered.

    This part includes general requirements applicable to the conduct of 
the following programs authorized under title VII, chapter 1 of the 
Rehabilitation Act of 1973, as amended:
    (a) Independent Living Services (ILS), title VII, chapter 1, part B 
(29 U.S.C. 796e to 796e-3).
    (b) The Centers for Independent Living (CIL), title VII, chapter 1, 
part C (29 U.S.C. 796f to 796f-6).



Sec. 1329.2  Purpose.

    The purpose of title VII of the Act is to promote a philosophy of 
independent living (IL), including a philosophy of consumer control, 
peer support, self-help, self-determination, equal access, and 
individual and system advocacy, in order to maximize the leadership, 
empowerment, independence, and productivity of individuals with 
disabilities, and to promote the integration and full inclusion of 
individuals with disabilities into the mainstream of American society 
by:
    (a) Providing financial assistance to States for providing, 
expanding, and improving the provision of IL services;
    (b) Providing financial assistance to develop and support statewide 
networks of Centers for Independent Living (Centers or CILs);
    (c) Providing financial assistance to States, with the goal of 
improving the independence of individuals with disabilities, for 
improving working relationships among--
    (1) State Independent Living Services;
    (2) Centers for Independent Living;
    (3) Statewide Independent Living Councils (SILCs or Councils) 
established under section 705 of the Act (29 U.S.C. 796d);
    (4) State vocational rehabilitation (VR) programs receiving 
assistance under Title 1 of the Act (29 U.S.C. 720 et seq.);
    (5) State programs of supported employment services receiving 
assistance under Title VI of the Act (29 U.S.C. 795g et seq.);
    (6) Client assistance programs (CAPs) receiving assistance under 
section 112 of the Act (29 U.S.C. 732);
    (7) Programs funded under other titles of the Act;
    (8) Programs funded under other Federal laws; and
    (9) Programs funded through non-Federal sources with the goal of 
improving the independence of individuals with disabilities.

[[Page 223]]



Sec. 1329.3  Applicability of other regulations.

    Several other regulations apply to all activities under this part. 
These include but are not limited to:
    (a) 45 CFR part 16--Procedures of the Departmental Grant Appeals 
Board.
    (b) 45 CFR part 46--Protection of Human Subjects.
    (c) 45 CFR part 75--Uniform Administrative Requirements, Cost 
Principles, and Audit Requirements for HHS Awards.
    (d) 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.
    (e) 45 CFR part 81--Practice and Procedure for Hearings under Part 
80 of this Title.
    (f) 45 CFR part 84--Nondiscrimination on the Basis of Handicap in 
Programs Activities Receiving Federal Financial Assistance.
    (g) 45 CFR part 86--Nondiscrimination on the Basis of Sex in 
Education Programs or Activities Receiving Federal Financial Assistance.
    (h) 45 CFR part 91--Nondiscrimination on the Basis of Age in 
Programs or Activities Receiving Federal Financial Assistance from HHS.
    (i) 45 CFR part 93--New Restrictions on Lobbying.
    (j) 2 CFR part 376--Nonprocurement Debarment and Suspension.
    (k) 2 CFR part 382--Requirements for Drug-Free Workplace (Financial 
Assistance).



Sec. 1329.4  Definitions.

    For the purposes of this part, the following definitions apply:
    Act means the Rehabilitation Act of 1973 (29 U.S.C. 701 et seq.), as 
amended. Part B refers to part B of chapter 1 of title VII of the Act 
(29 U.S.C. 796e to 796e-3). Part C refers to part C of chapter 1 of 
title VII, of the Act (29 U.S.C. 796f to 796f-6).
    Administrative support services means services and supports provided 
by the designated State entity under Part B, and to Part C CILs 
administered by the State under section 723 of the Act in support of the 
goals, objectives and related activities under an approved State Plan 
for Independent Living (SPIL). Such support includes any costs 
associated with contracts and subgrants including fiscal and 
programmatic oversight, among other services.
    Administrator means the Administrator of the Administration for 
Community Living (ACL) of the Department of Health and Human Services.
    Advocacy means pleading an individual's cause or speaking or writing 
in support of an individual. To the extent permitted by State law or the 
rules of the agency before which an individual is appearing, a non-
lawyer may engage in advocacy on behalf of another individual. Advocacy 
may--
    (1) Involve representing an individual--
    (i) Before private entities or organizations, government agencies 
(whether State, local, or Federal), or in a court of law (whether State 
or Federal); or
    (ii) In negotiations or mediation, in formal or informal 
administrative proceedings before government agencies (whether State, 
local, or Federal), or in legal proceedings in a court of law; and
    (2) Be on behalf of--
    (i) A single individual, in which case it is individual advocacy;
    (ii) A group or class of individuals, in which case it is systems 
advocacy; or
    (iii) Oneself, in which case it is self advocacy.
    Attendant care means a personal assistance service provided to an 
individual with significant disabilities in performing a variety of 
tasks required to meet essential personal needs in areas such as 
bathing, communicating, cooking, dressing, eating, homemaking, 
toileting, and transportation.
    Center for independent living (``Center'') means a consumer-
controlled, community-based, cross-disability, nonresidential, private 
nonprofit agency for individuals with significant disabilities 
(regardless of age or income) that--
    (1) Is designed and operated within a local community by individuals 
with disabilities;
    (2) Provides an array of IL services as defined in section 7(18) of 
the Act, including, at a minimum, independent living core services as 
defined in this section; and

[[Page 224]]

    (3) Complies with the standards set out in Section 725(b) and 
provides and complies with the assurances in section 725(c) of the Act 
and Sec. 1329.5.
    Completed their secondary education means, with respect to the 
Independent Living Core Services that facilitate the transition of youth 
who are individuals with significant disabilities in section 
7(17)(e)(iii) of the Act, that an eligible youth has received a diploma; 
has received a certificate of completion for high school or other 
equivalent document marking the completion of participation in high 
school; or has exceeded the age of eligibility for services under IDEA.
    Consumer control means, with respect to a Center or eligible agency, 
that the Center or eligible agency vests power and authority in 
individuals with disabilities, including individuals who are or have 
been recipients of IL services, in terms of the management, staffing, 
decision making, operation, and provision of services. Consumer control, 
with respect to an individual, means that the individual with a 
disability asserts control over his or her personal life choices, and in 
addition, has control over his or her independent living plan (ILP), 
making informed choices about content, goals and implementation.
    Cross-disability means, with respect to services provided by a 
Center, that a Center provides services to individuals with all 
different types of significant disabilities, including individuals with 
significant disabilities who are members of unserved or underserved 
populations by programs under Title VII. Eligibility for services shall 
be determined by the Center, and shall not be based on the presence of 
any one or more specific significant disabilities.
    Designated State entity (DSE) is the State agency designated in the 
State Plan for Independent Living (SPIL) that acts on behalf of the 
State to provide the functions described in title VII, chapter 1 of the 
Act.
    Eligible agency means a consumer-controlled, community-based, cross-
disability, nonresidential, private, nonprofit agency.
    Independent living core services mean, for purposes of services that 
are supported under the ILS or CIL programs--
    (1) Information and referral services;
    (2) Independent Living skills training;
    (3) Peer counseling, including cross-disability peer counseling;
    (4) Individual and systems advocacy;
    (5) Services that:
    (i) Facilitate the transition of individuals with significant 
disabilities from nursing homes and other institutions to home and 
community-based residences, with the requisite supports and services. 
This process may include providing services and supports that a consumer 
identifies are needed to move that person from an institutional setting 
to community based setting, including systems advocacy required for the 
individual to move to a home of his or her choosing;
    (ii) Provide assistance to individuals with significant disabilities 
who are at risk of entering institutions so that the individuals may 
remain in the community. A determination of who is at risk of entering 
an institution should include self-identification by the individual as 
part of the intake or goal-setting process; and
    (iii) Facilitate the transition of youth who are individuals with 
significant disabilities, who were eligible for individualized education 
programs under section 614(d) of the Individuals with Disabilities 
Education Act (20 U.S.C. 1414(d)), and who have completed their 
secondary education or otherwise left school, to postsecondary life. 
Individuals who have reached the age of 18 and are still receiving 
services in accordance with an Individualized Education Program (IEP) 
under IDEA have not ``completed their secondary education.''
    Independent living service includes the independent living core 
services and such other services as described in section 7(18) of the 
Act.
    Individual with a disability means an individual who--
    (1) Has a physical or mental impairment that substantially limits 
one or more major life activities of such individual;
    (2) Has a record of such an impairment; or

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    (3) Is regarded as having such an impairment, as described in 
section 3(3) of the Americans with Disabilities Act of 1990 (42 U.S.C. 
12102(3)).
    Individual with a significant disability means an individual with a 
severe physical or mental impairment whose ability to function 
independently in the family or community or whose ability to obtain, 
maintain, or advance in employment is substantially limited and for whom 
the delivery of independent living services will improve the ability to 
function, continue functioning, or move toward functioning independently 
in the family or community or to continue in employment, respectively.
    Majority means more than 50 percent.
    Minority group means American Indian, Alaskan Native, Asian 
American, Black or African American (not of Hispanic origin), Hispanic 
or Latino (including persons of Mexican, Puerto Rican, Cuban, and 
Central or South American origin), and Native Hawaiian or other Pacific 
Islander.
    Nonresidential means, with respect to a Center, that the Center does 
not operate or manage housing or shelter for individuals as an IL 
service on either a temporary or long-term basis unless the housing or 
shelter is--
    (1) Incidental to the overall operation of the Center;
    (2) Necessary so that the individual may receive an IL service; and
    (3) Limited to a period not to exceed eight weeks during any six-
month period.
    Peer relationships mean relationships involving mutual support and 
assistance among individuals with significant disabilities who are 
actively pursuing IL goals.
    Peer role models mean individuals with significant disabilities 
whose achievements can serve as a positive example for other individuals 
with significant disabilities.
    Personal assistance services mean a range of services, paid or 
unpaid, provided by one or more persons, designed to assist an 
individual with a disability to perform daily living activities that the 
individual would typically perform if the individual did not have a 
disability. These services must be designed to increase the individual's 
control in life and ability to perform everyday activities and include 
but are not limited to: Getting up and ready for work or going out into 
the community (including bathing and dressing), cooking, cleaning or 
running errands, engaging in social relationships including parenting.
    Service provider means a Center for Independent Living that receives 
financial assistance under Part B or C of chapter 1 of title VII of the 
Act, or any other entity or individual that provides IL services under a 
grant or contract from the DSE pursuant to Section 704(f) of the Act. A 
designated State entity (DSE) may directly provide IL services to 
individuals with significant disabilities only as specifically 
authorized in the SPIL.
    State includes, in addition to each of the several States of the 
United States, the District of Columbia, the Commonwealth of Puerto 
Rico, the United States Virgin Islands, Guam, American Samoa, and the 
Commonwealth of the Northern Mariana Islands.
    State plan means the State Plan for Independent Living (SPIL) 
required under Section 704 of the Act.
    Unserved and underserved groups or populations include populations 
such as individuals from racial and ethnic minority backgrounds, 
disadvantaged individuals, individuals with limited English proficiency, 
and individuals from underserved geographic areas (rural or urban).
    Youth with a significant disability means an individual with a 
significant disability who--
    (1) Is not younger than 14 years of age; and
    (2) Is not older than 24 years of age.



Sec. 1329.5  Indicators of minimum compliance.

    To be eligible to receive funds under this part, a Center must 
comply with the standards in section 725(b) and assurances in section 
725(c) of the Act, with the indicators of minimum compliance, and the 
requirements contained in the terms and conditions of the grant award.



Sec. 1329.6  Reporting.

    (a) A Center must submit a performance report in a manner and at a 
time

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described by the Administrator, consistent with section 704(m)(4)(D) of 
the Act, 29 U.S.C. 796c(m)(4)(D).
    (b) The DSE must submit a report in a manner and at a time described 
by the Administrator, consistent with section 704(c)(4) of the Act, 29 
U.S.C. 796c(c)(4).
    (c) The Administrator may require such other reports as deemed 
necessary to carry out the responsibilities set forth in section 706 of 
the Act, 29 U.S.C. 796d-1.



Sec. 1329.7  Enforcement and appeals procedures.

    (a) Process for Centers for Independent Living. (1) If the Director 
of the Independent Living Administration (Director) determines that, as 
the result of the Onsite Compliance Review process defined in section 
706(c)(2), or other review activities, any Center receiving funds under 
this part, other than a Center that is provided Part C funding by the 
State under section 723 of the Act, is not in compliance with the 
standards and assurances in section 725 (b) and (c) of the Act and of 
this part, the Director must provide notice to the Center pursuant to 
guidance determined by the Administrator.
    (2) The Director may offer technical assistance to the Center to 
develop a corrective action plan or to take such other steps as are 
necessary to come into compliance with the standards and assurances.
    (3) The Center may request a preliminary appeal to the Director in a 
form and manner determined by the Administrator. The Director shall 
review the appeal request and provide written notice of the 
determination within a timely manner.
    (4) Where there is a determination that falls within 45 CFR part 16, 
appendix A, C.a.(1)-(4), the Center may appeal an unfavorable decision 
by the Director to the Administrator within a time and manner 
established by the Administrator. The Administrator shall review the 
appeal request and provide written notice of the determination within a 
timely manner.
    (5) The Administrator may take steps to enforce a corrective action 
plan or to terminate funding if the Administrator determines that the 
Center remains out of compliance.
    (6) Written notice of the determination by the Administrator shall 
constitute a final determination for purposes of 45 CFR part 16. A 
Center that receives such notice of a determination that falls within 45 
CFR part 16, appendix A, C.a.(1)-(4), may appeal to the Departmental 
Appeals Board pursuant to the provisions of 45 CFR part 16.
    (7) A Center that is administered by the State under Section 723 of 
the Act must first exhaust any State process before going through the 
process described in paragraphs (a)(1) through (6) of this section.
    (b) Process for States. (1) If the Director of the Independent 
Living Administration determines that a State is out of compliance with 
sections 704, 705, 713 or other pertinent sections of the Act, the 
Director must provide notice to the State pursuant to guidance 
determined by the Administrator.
    (2) The Director may offer technical assistance to the State to 
develop a corrective action plan or to take such other steps as are 
necessary to ensure that the State comes in to compliance.
    (3) Where there is a determination that falls within 45 CFR part 16, 
appendix A, C.a.(1)-(4), the State may seek an appeal consistent with 
the steps set forth in paragraphs (a)(3) and (4) of this section.
    (4) The Administrator may take steps to enforce statutory or 
regulatory requirements or to terminate funding if the Administrator 
determines that the State remains out of compliance.
    (5) Written notice of the determination by the Administrator shall 
constitute a final determination for purposes of 45 CFR part 16 with 
regard to the types of determinations set forth in 45 CFR part 16, 
appendix A, C.a.(1)-(4). A State that receives such notice may appeal to 
the Departmental Appeals Board pursuant to the provisions of 45 CFR part 
16.



                  Subpart B_Independent Living Services



Sec. 1329.10  Authorized use of funds for Independent Living Services.

    (a) The State:

[[Page 227]]

    (1) May use funds received under this part to support the SILC 
resource plan described in section 705(e) of the Act but may not use 
more than 30 percent of the funds unless an approved SPIL so specifies 
pursuant to Sec. 1329.15(c);
    (2) May retain funds under section 704(c)(5) of the Act; and
    (3) Shall distribute the remainder of the funds received under this 
part in a manner consistent with the approved State plan for the 
activities described in paragraph (b) of this section.
    (b) The State may use the remainder of the funds described in 
paragraph (a)(3) of this section to--
    (1) Provide to individuals with significant disabilities the 
independent living (IL) services required by section 704(e) of the Act, 
particularly those in unserved areas of the State;
    (2) Demonstrate ways to expand and improve IL services;
    (3) Support the operation of Centers for Independent Living 
(Centers) that are in compliance with the standards and assurances in 
section 725 (b) and (c) of the Act;
    (4) Support activities to increase the capacities of public or 
nonprofit agencies and organizations and other entities to develop 
comprehensive approaches or systems for providing IL services;
    (5) Conduct studies and analyses, gather information, develop model 
policies and procedures, and present information, approaches, 
strategies, findings, conclusions, and recommendations to Federal, 
State, and local policy makers in order to enhance IL services for 
individuals with significant disabilities;
    (6) Train individuals with disabilities and individuals providing 
services to individuals with disabilities, and other persons regarding 
the IL philosophy; and
    (7) Provide outreach to populations that are unserved or underserved 
by programs under title VII of the Act, including minority groups and 
urban and rural populations.



Sec. 1329.11  DSE eligibility and application.

    (a) Any designated State entity (DSE) identified by the State and 
included in the signed SPIL pursuant to section 704(c) is eligible to 
apply for assistance under this part in accordance with section 704 of 
the Act, 29 U.S.C. 796c.
    (b) To receive financial assistance under Parts B and C of chapter 1 
of title VII, a State shall submit to the Administrator and obtain 
approval of a State plan that meets the requirements of section 704 of 
the Act, 29 U.S.C. 796c.
    (c) Allotments to states are determined in accordance with section 
711 of the Act, 29 U.S.C. 796e.



Sec. 1329.12  Role of the designated State entity.

    (a) A DSE that applies for and receives assistance must:
    (1) Receive, account for, and disburse funds received by the State 
under Part B and Part C in a State under section 723 of the Act based on 
the State plan;
    (2) Provide administrative support services for a program under Part 
B, as directed by the approved State plan, and for CILs under Part C 
when administered by the State under section 723 of the Act, 29 U.S.C. 
796f-2;
    (3) Keep such records and afford such access to such records as the 
Administrator finds to be necessary with respect to the programs;
    (4) Submit such additional information or provide such assurances as 
the Administrator may require with respect to the programs; and
    (5) Retain not more than 5 percent of the funds received by the 
State for any fiscal year under Part B, for the performance of the 
services outlined in paragraphs (a)(1) through (4) of this section. For 
purposes of these regulations, the 5 percent cap on funds for 
administrative expenses applies only to the Part B funds allocated to 
the State and to the State's required 10 percent Part B match. It does 
not apply to other program income funds, including, but not limited to, 
payments provided to a State from the Social Security Administration for 
assisting Social Security beneficiaries and recipients to achieve 
employment outcomes, any other federal funds, or to other funds 
allocated by the State for IL purposes.
    (b) The DSE must also carry out its other responsibilities under the 
Act, including, but not limited to:

[[Page 228]]

    (1) Allocating funds for the delivery of IL services under Part B of 
the Act as directed by the SPIL; and
    (2) Allocating the necessary and sufficient resources needed by the 
SILC to fulfill its statutory duties and authorities under section 
705(c), consistent with the approved State Plan.
    (c) Fiscal and accounting requirements: The DSE must adopt fiscal 
control and fund accounting procedures as may be necessary to ensure the 
proper disbursement of and accounting for federal funds provided to 
CILs, SILCs, and/or other services providers under the ILS program. The 
DSE must comply with all applicable federal and State laws and 
regulations, including those in 45 CFR part 75.



Sec. 1329.13  Allotment of Federal funds for State independent 
living (IL) services.

    (a) The allotment of Federal funds for State IL services for each 
State is computed in accordance with the requirements of section 
711(a)(1) of the Act.
    (b) Notwithstanding paragraph (a) of this section, the allotment of 
Federal funds for Guam, American Samoa, the United States Virgin 
Islands, and the Commonwealth of the Northern Mariana Islands is 
computed in accordance with section 711(a)(2) of the Act.
    (c) The Administrator shall reserve between 1.8 percent and 2 
percent of appropriated funds to provide, either directly or through 
grants, contracts, or cooperative agreements, training and technical 
assistance to SILCs. Training and technical assistance funds shall be 
administered in accordance with section 711A of the Act.



Sec. 1329.14  Establishment of a SILC.

    (a) To be eligible to receive assistance under this part, each State 
shall establish and maintain a SILC that meets the requirements of 
section 705 of the Act, including composition and appointment of 
members.
    (b) The SILC shall not be established as an entity within a State 
agency, including the DSE. The SILC shall be independent of and 
autonomous from the DSE and all other State agencies.



Sec. 1329.15  Duties of the SILC.

    (a) The duties of the SILC are those set forth in section 705(c), 
(d), and (e) of the Act.
    (1) The SILC shall develop the SPIL in accordance with guidelines 
developed by the Administrator;
    (2) The SILC shall monitor, review and evaluate the implementation 
of the SPIL on a regular basis as determined by the SILC and set forth 
in the SPIL;
    (3) The SILC shall meet regularly, and ensure that such meetings are 
open to the public and sufficient advance notice of such meetings is 
provided;
    (4) The SILC shall submit to the Administrator such periodic reports 
as the Administrator may reasonably request, and keep such records, and 
afford such access to such records, as the Administrator finds necessary 
to verify the information in such reports; and
    (5) The SILC shall, as appropriate, coordinate activities with other 
entities in the State that provide services similar to or complementary 
to independent living services, such as entities that facilitate the 
provision of or provide long-term community-based services and supports.
    (b) In carrying out the duties under this section, the SILC may 
provide contact information for the nearest appropriate CIL. Sharing of 
such information shall not constitute the direct provision of 
independent living services as defined in section 705(c)(3) of the Act.
    (c) The SILC, in conjunction with the DSE, shall prepare a plan for 
the provision of resources, including staff and personnel that are 
necessary and sufficient to carry out the functions of the SILC.
    (1) The resource plan amount shall be commensurate, to the extent 
possible, with the estimated costs related to SILC fulfilment of its 
duties and authorities consistent with the approved State Plan.
    (2) Available resources include: Innovation and Expansion (I&E) 
funds authorized by 29 U.S.C. 721(a)(18); Independent Living Part B 
funds; State matching funds; other public funds (such as Social Security 
reimbursement funds); and private sources.

[[Page 229]]

    (3) In accordance with Sec. 1329.10(a)(1), no more than 30 percent 
of the State's allocation of Part B and Part B State matching funds may 
be used to fund the resource plan, unless the approved SPIL provides 
that more than 30 percent is needed and justifies the greater 
percentage.
    (4) No conditions or requirements may be included in the SILC's 
resource plan that may compromise the independence of the SILC.
    (5) The SILC is responsible for the proper expenditure of funds and 
use of resources that it receives under the resource plan.
    (6) A description of the SILC's resource plan must be included in 
the State plan. The plan should include:
    (i) Staff/personnel;
    (ii) Operating expenses;
    (iii) Council compensation and expenses;
    (iv) Meeting expenses, including public hearing expenses, such as 
meeting space, alternate formats, interpreters, and other 
accommodations;
    (v) Resources to attend and/or secure training for staff and Council 
members; and
    (vi) Other costs as appropriate.
    (d) The SILC shall carry out the activities in paragraph (a), to 
better serve individuals with significant disabilities and help achieve 
the purpose of section 701 of the Act.
    (e) The SILC shall, consistent with State law, supervise and 
evaluate its staff and other personnel as may be necessary to carry out 
its functions under this section.



Sec. 1329.16  Authorities of the SILC.

    (a) The SILC may conduct the following discretionary activities, as 
authorized and described in the approved State Plan:
    (1) Work with Centers for Independent Living to coordinate services 
with public and private entities to improve services provided to 
individuals with disabilities;
    (2) Conduct resource development activities to support the 
activities described in the approved SPIL and/or to support the 
provision of independent living services by Centers for Independent 
Living; and
    (3) Perform such other functions, consistent with the purpose of 
this part and comparable to other functions described in section 705(c) 
of the Act, as the Council determines to be appropriate and authorized 
in the approved SPIL.
    (b) In undertaking the foregoing duties and authorities, the SILC 
shall:
    (1) Coordinate with the CILs in order to avoid conflicting or 
overlapping activities within the CILs' established service areas;
    (2) Not engage in activities that constitute the direct provision of 
IL services to individuals, including the IL core services; and
    (3) Comply with Federal prohibitions against lobbying.



Sec. 1329.17  General requirements for a State plan.

    (a) The State may use funds received under Part B to support the 
Independent Living Services program and to meet its obligations under 
the Act, including the section 704(e) requirements that apply to the 
provision of independent living services. The State plan must stipulate 
that the State will provide IL services, directly and/or through grants 
and contracts, with Federal, State or other funds, and must describe how 
and to whom those funds will be disbursed for this purpose.
    (b) In order to receive financial assistance under this part, a 
State shall submit to the Administrator a State plan for independent 
living.
    (1) The State plan must contain, in the form prescribed by the 
Administrator, the information set forth in section 704 of the Act, 
including designation of an Agency to serve as the designated State 
entity, and such other information requested by the Administrator.
    (2) The State plan must contain the assurances set forth in section 
704(m) of the Act.
    (3) The State plan must be signed in accordance with the provisions 
of this section.
    (4) The State plan must be submitted 90 days before the completion 
date of the proceeding plan, and otherwise in the time frame and manner 
prescribed by the Administrator.

[[Page 230]]

    (5) The State plan must be approved by the Administrator.
    (c) The State plan must cover a period of not more than three years 
and must be amended whenever necessary to reflect any material change in 
State law, organization, policy, or agency operations that affects the 
administration of the State plan.
    (d) The State plan must be jointly--
    (1) Developed by the chairperson of the SILC, and the directors of 
the CILs, after receiving public input from individuals with 
disabilities and other stakeholders throughout the State; and
    (2) Signed by the--
    (i) Chairperson of the SILC, acting on behalf of and at the 
direction of the SILC;
    (ii) The director of the DSE, signifying agreement to execute the 
responsibilities of the DSE identified in section 704(c) of the Act; and
    (iii) Not less than 51 percent of the directors of the CILs in the 
State. For purposes of this provision, if a legal entity that 
constitutes the ``CIL'' has multiple Part C grants considered as 
separate Centers for all other purposes, for SPIL signature purposes, it 
is only considered as one Center. CILs with service areas in more than 
one State that meet the other applicable requirements are eligible to 
participate in SPIL development and sign the SPIL in each of the 
relevant States.
    (e) The State plan must provide for the review and revision of the 
plan, not less than once every three years, to ensure the existence of 
appropriate planning, financial support and coordination, and other 
assistance to meet the requirements of section 704(a) of the Act.
    (f) The public, including people with disabilities and other 
stakeholders throughout the State, must have an opportunity to comment 
on the State plan prior to its submission to the Administrator and on 
any revisions to the approved State plan. Meeting this standard for 
public input from individuals with disabilities requires providing 
reasonable modifications in policies, practices, or procedures; 
effective communication and appropriate auxiliary aids and services for 
individuals with disabilities, which may include the provision of 
qualified interpreters and information in alternate formats, free of 
charge.
    (1) The requirement for public input in this section may be met by 
holding public meetings before a preliminary draft State plan is 
prepared and by providing a preliminary draft State plan for comment 
prior to submission.
    (2) To meet the public input standard of this section, a public 
meeting requires:
    (i) Accessible, appropriate and sufficient notice provided at least 
30 days prior to the public meeting through various media available to 
the general public, such as Web sites, newspapers and public service 
announcements, and through specific contacts with appropriate 
constituency groups.
    (ii) All notices, including notices published on a Web site, and 
other written materials provided at or prior to public meetings must be 
available upon request in accessible formats.
    (g) The State plan must identify those provisions that are State-
imposed requirements. For purposes of this section, a State-imposed 
requirement includes any State law, regulation, rule, or policy relating 
to the DSE's administration or operation of IL programs under Title VII 
of the Act, including any rule or policy implementing any Federal law, 
regulation, or guideline that is beyond what would be required to comply 
with the regulations in this part.
    (h) The State plan must address how the specific requirements in the 
Act and in paragraph (f) of this section will be met.



            Subpart C_Centers for Independent Living Program



Sec. 1329.20  Centers for Independent Living (CIL) program.

    State allotments of Part C, funds shall be based on section 721(c) 
of the Act, and distributed to Centers within the State in accordance 
with the order of priorities in sections 722(e) and 723(e) of the Act.



Sec. 1329.21  Continuation awards to entities eligible for assistance
under the CIL program.

    (a) In any State in which the Administrator has approved the State 
plan

[[Page 231]]

required by section 704 of the Act, an eligible agency funded under Part 
C in fiscal year 2015 may receive a continuation award in FY 2016 or a 
succeeding fiscal year if the Center has--
    (1) Complied during the previous project year with the standards and 
assurances in section 725 of the Act and the terms and conditions of its 
grant; and
    (2) Submitted an approvable annual performance report demonstrating 
that the Center meets the indicators of minimum compliance referenced in 
in Sec. 1329.5.
    (b) If an eligible agency administers more than one Part C grant, 
each of the Center grants must meet the requirements of paragraph (a) of 
this section to receive a continuation award.
    (c) A designated State entity (DSE) that operated a Center in 
accordance with section 724(a) of the Act in fiscal year (FY) 2015 is 
eligible to continue receiving assistance under this part in FY 2016 or 
a succeeding fiscal year if, for the fiscal year for which assistance is 
sought--
    (1) No nonprofit private agency submits and obtains approval of an 
acceptable application under section 722 or 723 of the Act to operate a 
Center for that fiscal year before a date specified by the 
Administrator; or
    (2) After funding all applications so submitted and approved, the 
Administrator determines that funds remain available to provide that 
assistance.
    (d) A Center operated by the DSE under section 724(a) of the Act 
must comply with paragraphs (a), (b), and (c) of this section to receive 
continuation funding, except for the requirement that the Center be a 
private nonprofit agency.
    (e) A designated State entity that administered Part C funds and 
awarded grants directly to Centers within the State under section 723 of 
the Act in fiscal year (FY) 2015 is eligible to continue receiving 
assistance under section 723 in FY 2016 or a succeeding fiscal year if 
the Administrator determines that the amount of State funding earmarked 
by the State to support the general operation of Centers during the 
preceding fiscal year equaled or exceeded the amount of federal funds 
allotted to the State under section 721(c) of the Act for that fiscal 
year.
    (f) A DSE may apply to administer Part C funds under section 723 in 
the time and in the manner that the Administrator may require, 
consistent with section 723(a)(1)(A) of the Act.
    (g) Grants awarded by the DSE under section 723 of the Act are 
subject to the requirements of paragraphs (a) and (b) of this section 
and the order of priorities in section 723(e) of the Act, unless the DSE 
and the SILC jointly agree on another order of priorities.



Sec. 1329.22  Competitive awards to new Centers for Independent Living.

    (a) Subject to the availability of funds and in accordance with the 
order of priorities in section 722(e) of the Act and the State Plan's 
design for the statewide network of Centers, an eligible agency may 
receive Part C funding as a new Center for Independent Living in a 
State, if the eligible agency:
    (1) Submits to the Administrator an application at the time and 
manner required in the funding opportunity announcement (FOA) issued by 
the Administrator which contains the information and meets the selection 
criteria established by the Administrator in accordance with section 
722(d) of the Act;
    (2) Proposes to serve a geographic area that has been designated as 
a priority unserved or underserved in the State Plan for Independent 
Living and that is not served by an existing Part C-funded Center; and
    (3) Is determined by the Administrator to be the most qualified 
applicant to serve the designated priority area consistent with the 
State plan setting forth the design of the State for establishing a 
statewide network of Centers for independent living.
    (b) An existing Part C-funded Center may apply to serve the 
designated unserved or underserved areas if it proposes the 
establishment of a separate and complete Center (except that the 
governing board of the existing center may serve as the governing board 
of the new Center) at a different geographic location, consistent with 
the requirements in the FOA.

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    (c) An eligible agency located in a bordering, contiguous State may 
be eligible for a new CIL award if the Administrator determines, based 
on the submitted application, that the agency:
    (1) Is the most qualified applicant meeting the requirements in 
paragraphs (a) and (b) of this section; and
    (2) Has the expertise and resources necessary to serve individuals 
with significant disabilities who reside in the bordering, contiguous 
State, in accordance with the requirements of the Act and these 
regulations.
    (d) If there are insufficient funds under the State's allotment to 
fund a new Center, the Administrator may--
    (1) Use the excess funds in the State to assist existing Centers 
consistent with the State plan; or
    (2) Reallot these funds in accordance with section 721(d) of the 
Act.



Sec. 1329.23  Compliance reviews.

    (a) Centers receiving Part C funding shall be subject to periodic 
reviews, including on-site reviews, in accordance with sections 706(c), 
722(g), and 723(g) of the Act and guidance set forth by the 
Administrator, to verify compliance with the standards and assurances in 
section 725(b) and (c) of the Act and the grant terms and conditions. 
The Administrator shall annually conduct reviews of at least 15 percent 
of the Centers.
    (b) A copy of each review under this section shall be provided, in 
the case of section 723(g), by the director of the DSE to the 
Administrator and to the SILC, and in the case of section 722(g), by the 
Administrator to the SILC and the DSE.



Sec. 1329.24  Training and technical assistance to Centers for 
Independent Living.

    The Administrator shall reserve between 1.8% and 2% of appropriated 
funds to provide training and technical assistance to Centers through 
grants, contracts or cooperative agreements, consistent with section 
721(b) of the Act. The training and technical assistance funds shall be 
administered in accordance with section 721(b) of the Act.



PART 1330_NATIONAL INSTITUTE FOR DISABILITY, INDEPENDENT LIVING,
AND REHABILITATION RESEARCH--Table of Contents



 Subpart A_Disability, Independent Living, and Rehabilitation Research 
                      Projects and Centers Program

Sec.
1330.1 General.
1330.2 Eligibility for assistance and other regulations and guidance.
1330.3 Definitions.
1330.4 Stages of research.
1330.5 Stages of development.

                   Subpart B_Requirements for Awardees

1330.10 General requirements for awardees.
1330.11 Individuals with disabilities from minority backgrounds.

                     Subpart C_Selection of Awardees

1330.20 Peer review purpose.
1330.21 Peer review process.
1330.22 Composition of peer review panel.
1330.23 Evaluation process.
1330.24 Selection criteria.
1330.25 Additional considerations for field-initiated priorities.

 Subpart D_Disability, Independent Living, and Rehabilitation Research 
                               Fellowships

1330.30 Fellows program.

 Subpart E_Special Projects and Demonstrations for Spinal Cord Injuries

1330.40 Spinal cord injuries program.

    Authority: 29 U.S.C. 709, 3343.

    Source: 81 FR 29159, May 11, 2016, unless otherwise noted.



 Subpart A_Disability, Independent Living, and Rehabilitation Research 
                      Projects and Centers Program



Sec. 1330.1  General.

    (a) The Disability, Independent Living, and Rehabilitation Research 
Projects and Centers Program provides grants to establish and support:
    (1) The following Disability, Independent Living, and Rehabilitation 
Research and Related Projects:
    (i) Disability, Independent Living, and Rehabilitation Research 
Projects;
    (ii) Field-Initiated Projects;

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    (iii) Advanced Rehabilitation Research Training Projects; and
    (2) The following Disability, Independent Living, and Rehabilitation 
Research Centers:
    (i) Rehabilitation Research and Training Centers;
    (ii) Rehabilitation Engineering Research Centers.
    (b) The purpose of the Disability, Independent Living, and 
Rehabilitation Research Projects and Centers Program is to plan and 
conduct research, development, demonstration projects, training, 
dissemination, and related activities, including international 
activities, to:
    (1) Develop methods, procedures, and rehabilitation technology, that 
maximize the full inclusion and integration into society, employment, 
education, independent living, family support, and economic and social 
self-sufficiency of individuals with disabilities, especially 
individuals with the most severe disabilities; and
    (2) Improve the effectiveness of services authorized under the 
Rehabilitation Act of 1973, 29 U.S.C. 701 et seq.



Sec. 1330.2  Eligibility for assistance and other regulations
and guidance.

    (a) Unless otherwise stated in this part or in a determination by 
the NIDILRR Director, the following entities are eligible for an award 
under this program:
    (1) States.
    (2) Public or private agencies, including for-profit agencies.
    (3) Public or private organizations, including for-profit 
organizations.
    (4) Institutions of higher education.
    (5) Indian tribes and tribal organizations.
    (b) Other sources of regulation which may apply to awards under this 
part include but are not limited to:
    (1) 45 CFR part 16--Procedures of the Departmental Grant Appeals 
Board.
    (2) 45 CFR part 46--Protection of Human Subjects.
    (3) 45 CFR part 75--Uniform Administrative Requirements, Cost 
Principles, and Audit Requirements for HHS Awards.
    (4) 2 CFR parts 376 and 382--Nonprocurement Debarment and Suspension 
and Requirements for Drug-Free Workplace (Financial Assistance).
    (5) 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.
    (6) 45 CFR part 81--Practice and Procedure for Hearings under part 
80 of this title.
    (7) 45 CFR part 84--Nondiscrimination on the Basis of Handicap in 
Programs or Activities Receiving Federal Financial Assistance.
    (8) 45 CFR part 86--Nondiscrimination on the Basis of Sex in 
Education Programs or Activities Receiving Federal Financial Assistance.
    (9) 45 CFR part 87--Equal Treatment of Faith-Based Organizations.
    (10) 45 CFR part 91--Nondiscrimination on the Basis of Age in 
Programs or Activities Receiving Federal Financial Assistance from HHS.
    (11) 45 CFR part 93--New Restrictions on Lobbying.



Sec. 1330.3  Definitions.

    As used in this part:
    (a) Secretary means the Secretary of the Department of Health and 
Human Services.
    (b) Administrator means the Administrator of the Administration for 
Community Living.
    (c) Director means the Director of the National Institute on 
Disability, Independent Living, and Rehabilitation Research.
    (d) Research is classified on a continuum from basic to applied:
    (1) Basic research is research in which the investigator is 
concerned primarily with gaining new knowledge or understanding of a 
subject without reference to any immediate application or utility.
    (2) Applied research is research in which the investigator is 
primarily interested in developing new knowledge, information, or 
understanding which can be applied to a predetermined rehabilitation 
problem or need.
    (e) Development activities use knowledge and understanding gained 
from research to create materials, devices, systems, or methods 
beneficial to the target population, including design and

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development of prototypes and processes.
    (f) Products encompass models, methods, tools, applications, and 
devices, but are not necessarily limited to these types.



Sec. 1330.4  Stages of research.

    For any Disability, Independent Living, and Rehabilitation Research 
Projects and Centers Program competition, the Department may require in 
the application materials for the competition that the applicant 
identify the stage(s) of research in which it will focus the work of its 
proposed project or center. The four stages of research are:
    (a) Exploration and discovery mean the stage of research that 
generates hypotheses or theories through new and refined analyses of 
data, producing observational findings and creating other sources of 
research-based information. This research stage may include identifying 
or describing the barriers to and facilitators of improved outcomes of 
individuals with disabilities, as well as identifying or describing 
existing practices, programs, or policies that are associated with 
important aspects of the lives of individuals with disabilities. Results 
achieved under this stage of research may inform the development of 
interventions or lead to evaluations of interventions or policies. The 
results of the exploration and discovery stage of research may also be 
used to inform decisions or priorities;
    (b) Intervention development means the stage of research that 
focuses on generating and testing interventions that have the potential 
to improve outcomes for individuals with disabilities. Intervention 
development involves determining the active components of possible 
interventions, developing measures that would be required to illustrate 
outcomes, specifying target populations, conducting field tests, and 
assessing the feasibility of conducting a well-designed intervention 
study. Results from this stage of research may be used to inform the 
design of a study to test the efficacy of an intervention;
    (c) Intervention efficacy means the stage of research during which a 
project evaluates and tests whether an intervention is feasible, 
practical, and has the potential to yield positive outcomes for 
individuals with disabilities. Efficacy research may assess the strength 
of the relationships between an intervention and outcomes, and may 
identify factors or individual characteristics that affect the 
relationship between the intervention and outcomes. Efficacy research 
can inform decisions about whether there is sufficient evidence to 
support ``scaling-up'' an intervention to other sites and contexts. This 
stage of research may include assessing the training needed for wide-
scale implementation of the intervention, and approaches to evaluation 
of the intervention in real-world applications; and
    (d) Scale-up evaluation means the stage of research during which a 
project analyzes whether an intervention is effective in producing 
improved outcomes for individuals with disabilities when implemented in 
a real-world setting. During this stage of research, a project tests the 
outcomes of an evidence-based intervention in different settings. The 
project examines the challenges to successful replication of the 
intervention, and the circumstances and activities that contribute to 
successful adoption of the intervention in real-world settings. This 
stage of research may also include well-designed studies of an 
intervention that has been widely adopted in practice, but lacks a 
sufficient evidence base to demonstrate its effectiveness.



Sec. 1330.5  Stages of development.

    For any Disability, Independent Living, and Rehabilitation Research 
Projects and Centers Program competition, the Department may require in 
the notice inviting applications for the competition that the applicant 
identify the stage(s) of development in which it will focus the work of 
its proposed project or center. The three stages of development are:
    (a) Proof of concept means the stage of development where key 
technical challenges are resolved. Stage activities may include 
recruiting study participants, verifying product requirements; 
implementing and testing (typically in controlled contexts) key 
concepts,

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components, or systems, and resolving technical challenges. A technology 
transfer plan is typically developed and transfer partner(s) identified; 
and plan implementation may have started. Stage results establish that a 
product concept is feasible.
    (b) Proof of product means the stage of development where a fully-
integrated and working prototype, meeting critical technical 
requirements is created. Stage activities may include recruiting study 
participants, implementing and iteratively refining the prototype, 
testing the prototype in natural or less-controlled contexts, and 
verifying that all technical requirements are met. A technology transfer 
plan is typically ongoing in collaboration with the transfer partner(s). 
Stage results establish that a product embodiment is realizable.
    (c) Proof of adoption means the stage of development where a product 
is substantially adopted by its target population and used for its 
intended purpose. Stage activities typically include completing product 
refinements; and continued implementation of the technology transfer 
plan in collaboration with the transfer partner(s). Other activities 
include measuring users' awareness of the product, opinion of the 
product, decisions to adopt, use, and retain products; and identifying 
barriers and facilitators impacting product adoption. Stage results 
establish that a product is beneficial.



                   Subpart B_Requirements for Awardees



Sec. 1330.10  General requirements for awardees.

    (a) In carrying out a research activity under this program, an 
awardee must:
    (1) Identify one or more hypotheses or research questions;
    (2) Based on the hypotheses or research question identified, perform 
an intensive systematic study in accordance with its approved 
application directed toward:
    (i) New or full scientific knowledge; or
    (ii) Understanding of the subject or problem being studied.
    (b) In carrying out a development activity under this program, an 
awardee must create, using knowledge and understanding gained from 
research, models, methods, tools, systems, materials, devices, 
applications, or standards that are adopted by and beneficial to the 
target population. Development activities span one or more stages of 
development.
    (c) In carrying out a training activity under this program, an 
awardee shall conduct a planned and systematic sequence of supervised 
instruction that is designed to impart predetermined skills and 
knowledge.
    (d) In carrying out a demonstration activity under this program, an 
awardee shall apply results derived from previous research, testing, or 
practice to determine the effectiveness of a new strategy or approach.
    (e) In carrying out a utilization activity under this program, a 
grantee must relate research findings to practical applications in 
planning, policy making, program administration, and delivery of 
services to individuals with disabilities.
    (f) In carrying out a dissemination activity under this program, a 
grantee must systematically distribute information or knowledge through 
a variety of ways to potential users or beneficiaries.
    (g) In carrying out a technical assistance activity under this 
program, a grantee must provide expertise or information for use in 
problem-solving.



Sec. 1330.11  Individuals with disabilities from minority backgrounds.

    (a) If the director so indicates in the application materials or 
elsewhere, an applicant for assistance under this program must 
demonstrate in its application how it will address, in whole or in part, 
the needs of individuals with disabilities from minority backgrounds.
    (b) The approaches an applicant may take to meet this requirement 
may include one or more of the following:
    (1) Proposing project objectives addressing the needs of individuals 
with disabilities from minority backgrounds.
    (2) Demonstrating that the project will address a problem that is of 
particular significance to individuals with

[[Page 236]]

disabilities from minority backgrounds.
    (3) Demonstrating that individuals from minority backgrounds will be 
included in study samples in sufficient numbers to generate information 
pertinent to individuals with disabilities from minority backgrounds.
    (4) Drawing study samples and program participant rosters from 
populations or areas that include individuals from minority backgrounds.
    (5) Providing outreach to individuals with disabilities from 
minority backgrounds to ensure that they are aware of rehabilitation 
services, clinical care, or training offered by the project.
    (6) Disseminating materials to or otherwise increasing the access to 
disability information among minority populations.



                     Subpart C_Selection of Awardees



Sec. 1330.20  Peer review purpose.

    The purpose of peer review is to insure that:
    (a) Those activities supported by the National Institute on 
Disability, Independent Living, and Rehabilitation Research (NIDILRR) 
are of the highest scientific, administrative, and technical quality; 
and
    (b) Activity results may be widely applied to appropriate target 
populations and rehabilitation problems.



Sec. 1330.21  Peer review process.

    (a) The Director refers each application for an award governed by 
these regulations in this part to a peer review panel established by the 
Director.
    (b) Peer review panels review applications on the basis of the 
applicable selection criteria in Sec. 1330.23.



Sec. 1330.22  Composition of peer review panel.

    (a) The Director selects as members of a peer review panel 
scientists and other experts in disability, independent living, 
rehabilitation or related fields who are qualified, on the basis of 
training, knowledge, or experience, to give expert advice on the merit 
of the applications under review.
    (b) The scientific peer review process shall be conducted by 
individuals who are not Department of Health and Human Services 
employees.
    (c) In selecting members to serve on a peer review panel, the 
Director may take into account the following factors:
    (1) The level of formal scientific or technical education completed 
by potential panel members.
    (2) The extent to which potential panel members have engaged in 
scientific, technical, or administrative activities appropriate to the 
category of applications that the panel will consider; the roles of 
potential panel members in those activities; and the quality of those 
activities.
    (3) The recognition received by potential panel members as reflected 
by awards and other honors from scientific and professional agencies and 
organizations outside the Department.
    (4) Whether the panel includes knowledgeable individuals with 
disabilities, or parents, family members, guardians, advocates, or 
authorized representatives of individuals with disabilities.
    (5) Whether the panel includes individuals from diverse populations.



Sec. 1330.23  Evaluation process.

    (a) The Director selects one or more of the selection criteria to 
evaluate an application:
    (1) The Director establishes selection criteria based on statutory 
provisions that apply to the Program which may include, but are not 
limited to:
    (i) Specific statutory selection criteria;
    (ii) Allowable activities;
    (iii) Application content requirements; or
    (iv) Other pre-award and post-award conditions; or
    (2) The Director may use a combination of selection criteria 
established under paragraph (a)(1) of this section and selection 
criteria from Sec. 1330.24 to evaluate a competition.
    (3) For Field-Initiated Projects, the Director does not consider 
Sec. 1330.24(b) (Responsiveness to the Absolute or Competitive 
Priority) in evaluating an application.
    (b) In considering selection criteria in Sec. 1330.24, the Director 
selects one or more of the factors listed in the criteria, but always 
considers the factor

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in Sec. 1330.24(n) regarding members of groups that have traditionally 
been underrepresented based on race, color, national origin, gender, 
age, or disability.
    (c) The maximum possible score for an application is 100 points.
    (d) In the application package or a notice published in the Federal 
Register, the Director informs applicants of:
    (1) The selection criteria chosen and the maximum possible score for 
each of the selection criteria; and
    (2) The factors selected for considering the selection criteria and 
if points are assigned to each factor, the maximum possible score for 
each factor under each criterion. If no points are assigned to each 
factor, the Director evaluates each factor equally.
    (e) For all instances in which the Director chooses to allow field-
initiated research and development, the selection criteria in Sec. 
1330.25 will apply, including the requirement that the applicant must 
achieve a score of 85 percent or more of maximum possible points.



Sec. 1330.24  Selection criteria.

    In addition to criteria established under Sec. 1330.23(a)(1), the 
Director may select one or more of the following criteria in evaluating 
an application:
    (a) Importance of the problem. In determining the importance of the 
problem, the Director considers one or more of the following factors:
    (1) The extent to which the applicant clearly describes the need and 
target population.
    (2) The extent to which the proposed activities further the purposes 
of the Rehabilitation Act.
    (3) The extent to which the proposed activities address a 
significant need of individuals with disabilities.
    (4) The extent to which the proposed activities address a 
significant need of rehabilitation service providers.
    (5) The extent to which the proposed activities address a 
significant need of those who provide services to individuals with 
disabilities.
    (6) The extent to which the applicant proposes to provide training 
in a rehabilitation discipline or area of study in which there is a 
shortage of qualified researchers, or to a trainee population in which 
there is a need for more qualified researchers.
    (7) The extent to which the proposed project will have beneficial 
impact on the target population.
    (b) Responsiveness to an absolute or competitive priority. In 
determining the application's responsiveness to the application package 
or the absolute or competitive priority published in the Federal 
Register, the Director considers one or more of the following factors:
    (1) The extent to which the applicant addresses all requirements of 
the absolute or competitive priority.
    (2) The extent to which the applicant's proposed activities are 
likely to achieve the purposes of the absolute or competitive priority.
    (c) Design of research activities. In determining the extent to 
which the design is likely to be effective in accomplishing the 
objectives of the project, the Director considers one or more of the 
following factors:
    (1) The extent to which the research activities constitute a 
coherent, sustained approach to research in the field, including a 
substantial addition to the state-of-the-art.
    (2) The extent to which the methodology of each proposed research 
activity is meritorious, including consideration of the extent to which:
    (i) The proposed design includes a comprehensive and informed review 
of the current literature, demonstrating knowledge of the state-of-the-
art;
    (ii) Each research hypothesis or research question, as appropriate, 
is theoretically sound and based on current knowledge;
    (iii) Each sample is drawn from an appropriate, specified population 
and is of sufficient size to address the proposed hypotheses or research 
questions, as appropriate, and to support the proposed data analysis 
methods;
    (iv) The source or sources of the data and the data collection 
methods are appropriate to address the proposed hypotheses or research 
questions and to support the proposed data analysis methods;
    (v) The data analysis methods are appropriate;
    (vi) Implementation of the proposed research design is feasible, 
given the

[[Page 238]]

current state of the science and the time and resources available;
    (vii) Input of individuals with disabilities and other key 
stakeholders is used to shape the proposed research activities; and
    (viii) The applicant identifies and justifies the stage of research 
being proposed and the research methods associated with the stage.
    (3) The extent to which anticipated research results are likely to 
satisfy the original hypotheses or answer the original research 
questions, as appropriate, and could be used for planning additional 
research, including generation of new hypotheses or research questions, 
where applicable.
    (4) The extent to which the stage of research is identified and 
justified in the description of the research project(s) being proposed.
    (d) Design of development activities. In determining the extent to 
which the project design is likely to be effective in accomplishing 
project objectives, the Director considers one or more of the following 
factors:
    (1) The extent to which the proposed project identifies a 
significant need and a well-defined target population for the new or 
improved product;
    (2) The extent to which the proposed project methodology is 
meritorious, including consideration of the extent to which:
    (i) The proposed project shows awareness of the state-of-the-art for 
current, related products;
    (ii) The proposed project employs appropriate concepts, components, 
or systems to develop the new or improved product;
    (iii) The proposed project employs appropriate samples in tests, 
trials, and other development activities;
    (iv) The proposed project conducts development activities in 
appropriate environment(s);
    (v) Input from individuals with disabilities and other key 
stakeholders is obtained to establish and guide proposed development 
activities; and
    (vi) The applicant identifies and justifies the stage(s) of 
development for the proposed project; and activities associated with 
each stage.
    (3) The new product will be developed and tested in an appropriate 
environment.
    (e) Design of demonstration activities. In determining the extent to 
which the design of demonstration activities is likely to be effective 
in accomplishing the objectives of the project, the Director considers 
one or more of the following factors:
    (1) The extent to which the proposed demonstration activities build 
on previous research, testing, or practices.
    (2) The extent to which the proposed demonstration activities 
include the use of proper methodological tools and theoretically sound 
procedures to determine the effectiveness of the strategy or approach.
    (3) The extent to which the proposed demonstration activities 
include innovative and effective strategies or approaches.
    (4) The extent to which the proposed demonstration activities are 
likely to contribute to current knowledge and practice and be a 
substantial addition to the state-of-the-art.
    (5) The extent to which the proposed demonstration activities can be 
applied and replicated in other settings.
    (f) Design of training activities. In determining the extent to 
which the design is likely to be effective in accomplishing the 
objectives of the project, the Director considers one or more of the 
following factors:
    (1) The extent to which the proposed training materials are likely 
to be effective, including consideration of their quality, clarity, and 
variety.
    (2) The extent to which the proposed training methods are of 
sufficient quality, intensity, and duration.
    (3) The extent to which the proposed training content:
    (i) Covers all of the relevant aspects of the subject matter; and
    (ii) If relevant, is based on new knowledge derived from research 
activities of the proposed project.
    (4) The extent to which the proposed training materials, methods, 
and content are appropriate to the trainees, including consideration of 
the skill level of the trainees and the subject matter of the materials.

[[Page 239]]

    (5) The extent to which the proposed training materials and methods 
are accessible to individuals with disabilities.
    (6) The extent to which the applicant's proposed recruitment program 
is likely to be effective in recruiting highly qualified trainees, 
including those who are individuals with disabilities.
    (7) The extent to which the applicant is able to carry out the 
training activities, either directly or through another entity.
    (8) The extent to which the proposed didactic and classroom training 
programs emphasize scientific methodology and are likely to develop 
highly qualified researchers.
    (9) The extent to which the quality and extent of the academic 
mentorship, guidance, and supervision to be provided to each individual 
trainee are of a high level and are likely to develop highly qualified 
researchers.
    (10) The extent to which the type, extent, and quality of the 
proposed research experience, including the opportunity to participate 
in advanced-level research, are likely to develop highly qualified 
researchers.
    (11) The extent to which the opportunities for collegial and 
collaborative activities, exposure to outstanding scientists in the 
field, and opportunities to participate in the preparation of scholarly 
or scientific publications and presentations are extensive and 
appropriate.
    (g) Design of dissemination activities. In determining the extent to 
which the design is likely to be effective in accomplishing the 
objectives of the project, the Director considers one or more of the 
following factors:
    (1) The extent to which the content of the information to be 
disseminated:
    (i) Covers all of the relevant aspects of the subject matter; and
    (ii) If appropriate, is based on new knowledge derived from research 
activities of the project.
    (2) The extent to which the materials to be disseminated are likely 
to be effective and usable, including consideration of their quality, 
clarity, variety, and format.
    (3) The extent to which the methods for dissemination are of 
sufficient quality, intensity, and duration.
    (4) The extent to which the materials and information to be 
disseminated and the methods for dissemination are appropriate to the 
target population, including consideration of the familiarity of the 
target population with the subject matter, format of the information, 
and subject matter.
    (5) The extent to which the information to be disseminated will be 
accessible to individuals with disabilities.
    (h) Design of utilization activities. In determining the extent to 
which the design of utilization activities is likely to be effective in 
accomplishing the objectives of the project, the Director considers one 
or more of the following factors:
    (1) The extent to which the potential new users of the information 
or technology have a practical use for the information and are likely to 
adopt the practices or use the information or technology, including new 
devices.
    (2) The extent to which the utilization strategies are likely to be 
effective.
    (3) The extent to which the information or technology is likely to 
be of use in other settings.
    (i) Design of technical assistance activities. In determining the 
extent to which the design of technical assistance activities is likely 
to be effective in accomplishing the objectives of the project, the 
Director considers one or more of the following factors:
    (1) The extent to which the methods for providing technical 
assistance are of sufficient quality, intensity, and duration.
    (2) The extent to which the information to be provided through 
technical assistance covers all of the relevant aspects of the subject 
matter.
    (3) The extent to which the technical assistance is appropriate to 
the target population, including consideration of the knowledge level of 
the target population, needs of the target population, and format for 
providing information.
    (4) The extent to which the technical assistance is accessible to 
individuals with disabilities.
    (j) Plan of operation. In determining the quality of the plan of 
operation,

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the Director considers one or more of the following factors:
    (1) The adequacy of the plan of operation to achieve the objectives 
of the proposed project on time and within budget, including clearly 
defined responsibilities, and timelines for accomplishing project tasks.
    (2) The adequacy of the plan of operation to provide for using 
resources, equipment, and personnel to achieve each objective.
    (k) Collaboration. In determining the quality of collaboration, the 
Director considers one or more of the following factors:
    (1) The extent to which the applicant's proposed collaboration with 
one or more agencies, organizations, or institutions is likely to be 
effective in achieving the relevant proposed activities of the project.
    (2) The extent to which agencies, organizations, or institutions 
demonstrate a commitment to collaborate with the applicant.
    (3) The extent to which agencies, organizations, or institutions 
that commit to collaborate with the applicant have the capacity to carry 
out collaborative activities.
    (l) Adequacy and reasonableness of the budget. In determining the 
adequacy and the reasonableness of the proposed budget, the Director 
considers one or more of the following factors:
    (1) The extent to which the costs are reasonable in relation to the 
proposed project activities.
    (2) The extent to which the budget for the project, including any 
subcontracts, is adequately justified to support the proposed project 
activities.
    (3) The extent to which the applicant is of sufficient size, scope, 
and quality to effectively carry out the activities in an efficient 
manner.
    (m) Plan of evaluation. In determining the quality of the plan of 
evaluation, the Director considers one or more of the following factors:
    (1) The extent to which the plan of evaluation provides for periodic 
assessment of progress toward:
    (i) Implementing the plan of operation; and
    (ii) Achieving the project's intended outcomes and expected impacts.
    (2) The extent to which the plan of evaluation will be used to 
improve the performance of the project through the feedback generated by 
its periodic assessments.
    (3) The extent to which the plan of evaluation provides for periodic 
assessment of a project's progress that is based on identified 
performance measures that:
    (i) Are clearly related to the intended outcomes of the project and 
expected impacts on the target population; and
    (ii) Are objective, and quantifiable or qualitative, as appropriate.
    (n) Project staff. In determining the quality of the project staff, 
the Director considers the extent to which the applicant encourages 
applications for employment from persons who are members of groups that 
have traditionally been underrepresented based on race, color, national 
origin, gender, age, or disability. In addition, the Director considers 
one or more of the following:
    (1) The extent to which the key personnel and other key staff have 
appropriate training and experience in disciplines required to conduct 
all proposed activities.
    (2) The extent to which the commitment of staff time is adequate to 
accomplish all the proposed activities of the project.
    (3) The extent to which the key personnel are knowledgeable about 
the methodology and literature of pertinent subject areas.
    (4) The extent to which the project staff includes outstanding 
scientists in the field.
    (5) The extent to which key personnel have up-to-date knowledge from 
research or effective practice in the subject area covered in the 
priority.
    (o) Adequacy and accessibility of resources. In determining the 
adequacy and accessibility of the applicant's resources to implement the 
proposed project, the Director considers one or more of the following 
factors:
    (1) The extent to which the applicant is committed to provide 
adequate facilities, equipment, other resources, including 
administrative support, and laboratories, if appropriate.
    (2) The quality of an applicant's past performance in carrying out a 
grant.

[[Page 241]]

    (3) The extent to which the applicant has appropriate access to 
populations and organizations representing individuals with disabilities 
to support advanced disability, independent living and clinical 
rehabilitation research.
    (4) The extent to which the facilities, equipment, and other 
resources are appropriately accessible to individuals with disabilities 
who may use the facilities, equipment, and other resources of the 
project.
    (p) Quality of the project design. In determining the quality of the 
design of the proposed project, the Director considers one or more of 
the following factors:
    (1) The extent to which the goals, objectives, and outcomes to be 
achieved by the proposed project are clearly specified and measurable.
    (2) The quality of the methodology to be employed in the proposed 
project.
    (3) The extent to which the design of the proposed project includes 
a thorough, high-quality review of the relevant literature, a high-
quality plan for project implementation, and the use of appropriate 
methodological tools to ensure successful achievement of project 
objectives.
    (4) The extent to which the design of the proposed project is 
appropriate to, and will successfully address, the needs of the target 
population or other identified needs.
    (5) The extent to which the proposed development efforts include 
adequate quality controls and, as appropriate, repeated testing of 
products.
    (6) The extent to which the proposed project will be coordinated 
with similar or related efforts, and with other appropriate community, 
State, and Federal resources.
    (7) The extent to which the design of the proposed project reflects 
up-to-date knowledge from research and effective practice.
    (8) The extent to which the proposed project represents an 
exceptional approach to the priority or priorities established for the 
competition.



Sec. 1330.25  Additional considerations for field-initiated 
priorities.

    (a) The Director reserves funds to support field-initiated 
applications funded under this part when those applications have been 
awarded points totaling 85 percent or more of the maximum possible 
points under the procedures described in Sec. 1330.23.
    (b) In making a final selection from applications received when 
NIDILRR uses field-initiated priorities, the Director may consider 
whether one of the following conditions is met and, if so, use this 
information to fund an application out of rank order:
    (1) The proposed project represents a unique opportunity to advance 
rehabilitation and other knowledge to improve the lives of individual 
with disabilities.
    (2) The proposed project complements or balances research activity 
already planned or funded by NIDILRR through its annual priorities or 
addresses the research in a new and promising way.
    (c) If the Director funds an application out of rank order under 
paragraph (b) of this section, the public will be notified through a 
notice on the NIDILRR Web site or through other means deemed appropriate 
by the Director.



 Subpart D_Disability, Independent Living, and Rehabilitation Research 
                               Fellowships



Sec. 1330.30  Fellows program.

    (a) The purpose of this program is to build research capacity by 
providing support to highly qualified individuals, including those who 
are individuals with disabilities, to perform research on 
rehabilitation, independent living, and other experiences and outcomes 
of individuals with disabilities.
    (b) The eligibility requirements for the Fellows program are as 
follows:
    (1) Only individuals are eligible to be recipients of Fellowships.
    (2) Any individual is eligible for assistance under this program who 
has training and experience that indicate a potential for engaging in 
scientific research related to rehabilitation and independent living for 
individuals with disabilities.
    (3) This program provides two categories of Fellowships: Merit 
Fellowships and Distinguished Fellowships.
    (i) To be eligible for a Distinguished Fellowship, an individual 
must have

[[Page 242]]

seven or more years of research experience in subject areas, methods, or 
techniques relevant to disability and rehabilitation research and must 
have a doctorate, other terminal degree, or comparable academic 
qualifications.
    (ii) The Director awards Merit Fellowships to individuals in earlier 
stages of their careers in research. To be eligible for a Merit 
Fellowship, an individual must have either advanced professional 
training or experience in independent study in an area which is directly 
pertinent to disability and rehabilitation.
    (c) Fellowships will be awarded in the form of a grant to eligible 
individuals.
    (d) In making a final selection of applicants to support under this 
program, the Director considers the extent to which applicants present a 
unique opportunity to effect a major advance in knowledge, address 
critical problems in innovative ways, present proposals which are 
consistent with the Institute's Long-Range Plan, build research capacity 
within the field, or complement and significantly increases the 
potential value of already planned research and related activities.



 Subpart E_Special Projects and Demonstrations for Spinal Cord Injuries



Sec. 1330.40  Spinal cord injuries program.

    (a) This program provides assistance to establish innovative 
projects for the delivery, demonstration, and evaluation of 
comprehensive medical, vocational, independent living, and 
rehabilitation services to meet the wide range of needs of individuals 
with spinal cord injuries.
    (b) The agencies and organizations eligible to apply under this 
program are described in Sec. 1330.2.



PART 1331_STATE HEALTH INSURANCE ASSISTANCE PROGRAM--Table of Contents



Sec.
1331.1 Basis, scope, and definition.
1331.2 Eligibility for grants.
1331.3 Availability of grants.
1331.4 Number and size of grants.
1331.5 Limitations.
1331.6 Reporting requirements.
1331.7 Administration.

    Authority: 42 U.S.C. 1395b-4.

    Source: 81 FR 5918, Feb. 4, 2016, unless otherwise noted.



Sec. 1331.1  Basis, scope, and definition.

    (a) Basis. This part implements, in part, the provisions of section 
4360 of Public Law 101-508 by establishing a minimum level of funding 
for grants made to States for the purpose of providing information, 
counseling, and assistance relating to obtaining adequate and 
appropriate health insurance coverage to individuals eligible to receive 
benefits under the Medicare program.
    (b) Scope of part. This part sets forth the following:
    (1) Conditions of eligibility for the grant.
    (2) Minimum levels of funding for those States qualifying for the 
grants.
    (3) Reporting requirements.
    (c) Definition. For purposes of this subpart, the term ``State'' 
includes (except where otherwise indicated by the context) the 50 
States, the District of Columbia, the Commonwealth of Puerto Rico, the 
Virgin Islands, Guam, and American Samoa.



Sec. 1331.2  Eligibility for grants.

    To be eligible for a grant under this subpart, the State must have 
an approved Medicare supplemental regulatory program under section 1882 
of the Act and submit a timely application to ACL that meets the 
requirements of--
    (a) Section 4360 of Public Law 101-508 (42 U.S.C. 1395b-4);
    (b) This subpart; and
    (c) The applicable solicitation for grant applications issued by 
ACL.



Sec. 1331.3  Availability of grants.

    ACL awards grants to States subject to availability of funds, and if 
applicable, subject to the satisfactory progress in the State's project 
during the preceding grant period. The criteria by which progress is 
evaluated and the performance standards for determining whether 
satisfactory progress has been made are specified in the terms and 
conditions included in the notice of grant award sent to each State. ACL 
advises each State as to when to make application, what to include in 
the application, and provides information as

[[Page 243]]

to the timing of the grant award and the duration of the grant award. 
ACL also provides an estimate of the amount of funds that may be 
available to the State.



Sec. 1331.4  Number and size of grants.

    (a) General. For available grant funds, up to and including 
$10,000,000, grants will be made to States according to the terms and 
formula in paragraphs (b) and (c) of this section. For any available 
grant funds in excess of $10,000,000, distribution of grants will be at 
the discretion of ACL, and will be made according to criteria that ACL 
will communicate to the States via grant solicitation. ACL will provide 
information to each State as to what must be included in the application 
for grant funds. ACL awards the following type of grants:
    (1) New program grants.
    (2) Existing program enhancement grants.
    (b) Grant award. Subject to the availability of funds, each eligible 
State that submits an acceptable application receives a grant that 
includes a fixed amount (minimum funding level) and a variable amount.
    (1) A fixed portion is awarded to States in the following amounts:
    (i) Each of the 50 States, $75,000.
    (ii) The District of Columbia, $75,000.
    (iii) Puerto Rico, $75,000.
    (iv) American Samoa, $25,000.
    (v) Guam, $25,000.
    (vi) The Virgin Islands, $25,000.
    (2) A variable portion which is based on the number and location of 
Medicare beneficiaries residing in the State is awarded to each State. 
The variable amount a particular State receives is determined as set 
forth in paragraph (c) of this section.
    (c) Calculation of variable portion of the grant. (1) ACL bases the 
variable portion of the grant on--
    (i) The amount of available funds, and
    (ii) A comparison of each State with the average of all of the 
States (except the State being compared) with respect to three factors 
that relate to the size of the State's Medicare population and where 
that population resides.
    (2) The factors ACL uses to compare States' Medicare populations 
comprise separate components of the variable amount. These factors, and 
the extent to which they each contribute to the variable amount, are as 
follows:
    (i) Approximately 75 percent of the variable amount is based on the 
number of Medicare beneficiaries living in the State as a percentage of 
all Medicare beneficiaries nationwide.
    (ii) Approximately 10 percent of the variable amount is based on the 
percentage of the State's total population who are Medicare 
beneficiaries.
    (iii) Approximately 15 percent of the variable amount is based on 
the percentage of the State's Medicare beneficiaries that reside in 
rural areas (``rural areas'' are defined as all areas not included 
within a metropolitan Statistical Area).
    (3) Based on the foregoing four factors (that is, the amount of 
available funds and the three comparative factors), ACL determines a 
variable rate for each participating State for each grant period.
    (d) Submission of revised budget. A State that receives an amount of 
grant funds under this subpart that differs from the amount requested in 
the budget submitted with its application must submit a revised budget 
to ACL, along with its acceptance of the grant award, which reflects the 
amount awarded.



Sec. 1331.5  Limitations.

    (a) Use of grants. Except as specified in paragraph (b) of this 
section, and in the terms and conditions in the notice of grant award, a 
State that receives a grant under this subpart may use the grant for any 
reasonable expenses for planning, developing, implementing and/or 
operating the program for which the grant is made as described in the 
solicitation for application for the grant.
    (b) Maintenance of effort. A State that receives a grant to 
supplement an existing program (that is, an existing program enhancement 
grant)--
    (1) Must not use the grant to supplant funds for activities that 
were conducted immediately preceding the date of the initial award of a 
grant made under this subpart and funded through other sources 
(including in-kind contributions).

[[Page 244]]

    (2) Must maintain the activities of the program at least at the 
level that those activities were conducted immediately preceding the 
initial award of a grant made under this subpart.



Sec. 1331.6  Reporting requirements.

    A State that receives a grant under this subpart must submit at 
least one annual report to ACL and any additional reports as ACL may 
prescribe in the notice of grant award. ACL advises the State of the 
requirements concerning the frequency, timing, and contents of reports 
in the notice of grant award that it sends to the State.



Sec. 1331.7  Administration.

    (a) General. Administration of grants will be in accordance with the 
provisions of this subpart, 45 CFR part 75 (``Uniform Administrative 
Requirements for Grants and Cooperative Agreements to State and Local 
Governments''), the terms of the solicitation, and the terms of the 
notice of grant award. Except for the minimum funding levels established 
by Sec. 1331.4(b)(1), in the event of conflict between a provision of 
the notice of grant award, any provision of the solicitation, or of any 
regulation enumerated in 45 CFR part 75, the terms of the notice of 
grant award control.
    (b) Notice. ACL provides notice to each applicant regarding ACL's 
decision on an application for grant funding under Sec. 1331.4.
    (c) Appeal. Any applicant for a grant under this subpart has the 
right to appeal ACL's determination regarding its application. Appeal 
procedures are governed by the regulations at 45 CFR part 16 (Procedures 
of the Departmental Grant Appeals Board).

[[Page 245]]



 SUBCHAPTER D_THE ADMINISTRATION FOR NATIVE AMERICANS, NATIVE AMERICAN 
                                PROGRAMS





PART 1336_NATIVE AMERICAN PROGRAMS--Table of Contents



                          Subpart A_Definitions

Sec.
1336.10 Definitions.

            Subpart B_Purpose of the Native American Programs

1336.20 Program purpose.

                   Subpart C_Native American Projects

1336.30 Eligibility under sections 804 and 805 of the Native American 
          Programs Act of 1974.
1336.31 Project approval procedures.
1336.32 Grants.
1336.33 Eligible applicants and proposed activities which are 
          ineligible.
1336.34 Notice of ineligibility.
1336.35 Appeal of ineligibility.

                          Subpart D_Evaluation

1336.40 General.

                Subpart E_Financial Assistance Provisions

1336.50 Financial and administrative requirements.
1336.51 Project period.
1336.52 Appeals.

   Subpart F_Native Hawaiian Revolving Loan Fund Demonstration Project

1336.60 Purpose of this subpart.
1336.61 Purpose of the Revolving Loan Fund.
1336.62 Definitions.
1336.63 General responsibilities of the Loan Administrator.
1336.64 Development of goals and strategies: Responsibilities of the 
          Loan Administrator.
1336.65 Staffing and organization of the Revolving Loan Fund: 
          Responsibilities of the Loan Administrator.
1336.66 Procedures and criteria for administration of the Revolving Loan 
          Fund: Responsibilities of the Loan Administrator.
1336.67 Security and collateral: Responsibilities of the Loan 
          Administrator.
1336.68 Defaults, uncollectible loans, liquidations: Responsibilities of 
          the Loan Administrator.
1336.69 Reporting requirements: Responsibilities of the Loan 
          Administrator.
1336.70 Technical assistance: Responsibilities of the Loan 
          Administrator.
1336.71 Administrative costs.
1336.72 Fiscal requirements.
1336.73 Eligible borrowers.
1336.74 Time limits and interest on loans.
1336.75 Allowable loan activities.
1336.76 Unallowable loan activities.
1336.77 Recovery of funds.

    Authority: 42 U.S.C. 2991 et seq.

    Source: 48 FR 55821, Dec. 15, 1983, unless otherwise noted.



                          Subpart A_Definitions



Sec. 1336.10  Definitions.

    For the purposes of this part, unless the context otherwise 
requires:
    Act means the Native American Programs Act of 1974, as amended (42 
U.S.C. 2991 et seq.).
    Alaskan Native means a person who is an Alaskan Indian, Eskimo, or 
Aleut, or any combination thereof. The term also includes any person who 
is regarded as an Alaskan Native by the Alaskan Native Village or group 
of which he or she claims to be a member and whose father or mother is 
(or, if deceased, was) regarded as an Alaskan Native by an Alaskan 
Native Village or group. The term includes any Alaskan Native as so 
defined, either or both of whose adoptive parents are not Alaskan 
Natives.
    American Indian or Indian means any individual who is a member or a 
descendant of a member of a North American tribe, band, Pueblo or other 
organized group of native people who are indigenous to the Continental 
United States, or who otherwise have a special relationship with the 
United States or a State through treaty, agreement, or some other form 
of recognition. This includes any individual who claims to be an Indian 
and who is regarded as such by the Indian tribe, group, band, or 
community of which he or she claims to be a member.
    ANA means the Administration for Native Americans within the Office 
of Human Development Services.
    Applicant means an organization which has applied for financial 
assistance from ANA.

[[Page 246]]

    Budget period means the interval of time into which a project period 
is divided for budgetary and funding purposes, and for which a grant is 
made. A budget period usually lasts one year in a multi-year project 
period.
    Economic and social self-sufficiency means the ability of Native 
Americans to define and achieve their own economic and social goals.
    Indian tribe means a distinct political community of Indians which 
exercises powers of self-government.
    Native American means American Indian, Indian, Native Hawaiian, and 
Alaskan Native, as defined in the Act, or in this section.
    Project period means, for discretionary grants and cooperative 
agreements, the total time for which the recipient's project or program 
is approved for support, including any extension, subject to the 
availability of funds, satisfactory progress, and a determination by HHS 
that continued funding is in the best interest of the Government.
    Recipient means an organization which has applied for financial 
assistance, and to which financial assistance is awarded under this Act. 
The term includes grantees and recipients of cooperative agreements.



            Subpart B_Purpose of the Native American Programs



Sec. 1336.20  Program purpose.

    The purpose of the Native American Programs authorized by the Native 
American Programs Act of 1974 is to promote the goal of economic and 
social self-sufficiency for Native Americans.



                   Subpart C_Native American Projects



Sec. 1336.30  Eligibility under sections 804 and 805 of the Native
American Programs Act of 1974.

    Financial assistance under sections 804 and 805 may be made to 
public or private agencies including ``for-profit'' organizations.

[48 FR 55821, Dec. 15, 1983, as amended at 53 FR 23968, June 24, 1988; 
53 FR 28223, July 27, 1988; 54 FR 3452, Jan. 24, 1989; 61 FR 42820, Aug. 
19, 1996]



Sec. 1336.31  Project approval procedures.

    (a) Each applicant for financial assistance under section 803 of the 
Act must submit a work plan that falls within the statutory requirements 
of the Act and meets the criteria of program announcements published by 
ANA in the Federal Register. If the proposed project extends beyond one 
year, a work plan must be submitted for the period of time specified by 
the Commissioner in the Program Announcement. ANA will determine whether 
to approve all, part, or none of the requested work plan. Proposed 
changes to the approved work plan must receive the written approval of 
ANA prior to implementation by the recipient.
    (b) ANA will negotiate the approved project goals, objectives, work 
plan, and the funding level for each budget period with each recipient.
    (c) The evaluation for the purpose of making an approval decision on 
each proposed work plan will take into account the proposal's 
conformance with ANA program purposes and the recipient's past 
performance and accomplishments.
    (d) Financial assistance awarded under section 803 may be renewed by 
ANA to grantees based on acceptable work plans and past performance.

(Approved by the Office of Management and Budget under control number 
0980-0016)



Sec. 1336.32  Grants.

    Generally, financial assistance will be made available for a one-
year budget period and subsequent non-competing continuation awards with 
the same project period will also be for one year. A recipient must 
submit a separate application to have financial assistance continued for 
each subsequent year, with the same project period, but the continuation 
application need only contain budget and a summary progress report.

[[Page 247]]



Sec. 1336.33  Eligible applicants and proposed activities which 
are ineligible.

    (a) Eligibility for the listed programs is restricted to the 
following specified categories of organizations. In addition, 
applications from tribal components which are tribally-authorized 
divisions of a larger tribe must be approved by the governing body of 
the Tribe. If the applicant, other than a tribe or an Alaska Native 
Village government, is proposing a project benefiting Native Americans 
or Native Alaskans, or both, it must provide assurance that its duly 
elected or appointed board of directors is representative of the 
community to be served.
    (1) Social and Economic Development Strategies (SEDS) and 
Preservation and Enhancement of Native American Languages:
    (i) Federally recognized Indian Tribes;
    (ii) Consortia of Indian Tribes;
    (iii) Incorporated non-Federally recognized Tribes;
    (iv) Incorporated nonprofit multi-purpose community-based Indian 
organizations;
    (v) Urban Indian Centers;
    (vi) National and regional incorporated nonprofit Native American 
organizations with Native American community-specific objectives;
    (vii) Alaska Native villages as defined in the Alaska Native Claims 
Settlement Act (ANSCA) and/or nonprofit village consortia;
    (viii) Incorporated nonprofit Alaska Native multi-purpose community-
based organizations;
    (ix) Nonprofit Alaska Native Regional Corporations/Associations in 
Alaska with village specific projects;
    (x) Nonprofit Native organizations in Alaska with village specific 
projects;
    (xi) Public and nonprofit private agencies serving Native Hawaiians;
    (xii) Public and nonprofit private agencies serving native peoples 
from Guam, American Samoa, Palau, or the Commonwealth of the Northern 
Mariana Islands. (The populations served may be located on these islands 
or in the United States);
    (xiii) Tribally Controlled Community Colleges Tribally Controlled 
Post-Secondary Vocational Institutions, and colleges and universities 
located in Hawaii, Guam, American Samoa, Palau, or the Commonwealth of 
the Northern Mariana Islands which serve Native American Pacific 
Islanders; and
    (xiv) Nonprofit Alaska Native community entities or tribal governing 
bodies (Indian Reorganization Act or traditional councils) as recognized 
by the Bureau of Indian Affairs.


(Statutory authority: Sections 803(a) and 803C of the Native American 
Programs Act of 1974, as amended, 42 U.S.C. 2991 b(a) and 42 U.S.C. 
2991b-3)

    (2) Alaska-Specific Social and Economic Development Strategies 
(SEDS) Projects:
    (i) Federally recognized Indian Tribes in Alaska;
    (ii) Alaska Native villages as defined in the Alaska Native Claims 
Settlement Act (ANCSA) and/or nonprofit village consortia;
    (iii) Incorporated nonprofit Alaska Native multi-purpose community-
based organizations;
    (iv) Nonprofit Alaska Native Regional Corporations/Associations in 
Alaska with village specific projects; and
    (v) Nonprofit Native organizations in Alaska with village specific 
projects.
    (3) Mitigation of Environmental Impacts to Indian Lands Due to 
Department of Defense Activities:
    (i) Federally recognized Indian Tribes;
    (ii) Incorporated non-Federally and State recognized Tribes;
    (iii) Nonprofit Alaska Native community entities or tribal governing 
bodies (Indian Reorganization Act (IRA) or traditional councils) as 
recognized by the Bureau of Indian Affairs.
    (iv) Nonprofit Alaska Native Regional Associations and/or 
Corporations with village specific projects; and
    (v) Other tribal or village organizations or consortia of Indian 
Tribes. (Statutory authority: Sec. 8094A of the Department of Defense 
Appropriations Act, 1994 (Public Law 103-139), Sec. 8094A of the Native 
Americans Programs Act of 1974, as amended, 42 U.S.C. 2991h(b)).
    (4) Improvement of the capability of tribal governing bodies to 
regulate environmental quality:

[[Page 248]]

    (i) Federally recognized Indian Tribes;
    (ii) Incorporated non-Federally and State recognized Indian tribes;
    (iii) Alaska Native villages as defined in the Alaska Native Claims 
Settlement Act (ANSCA) and/or nonprofit village consortia;
    (iv) Nonprofit Alaska Native Regional Corporations/Associations with 
village-specific projects;
    (v) Other tribal or village organizations or consortia of Indian 
tribes: and
    (vi) Tribal governing bodies (IRA or traditional councils) as 
recognized by the Bureau of Indian Affairs. (Statutory authority: 
Sections 803(d) of the Native Americans Programs Act of 1974, as amended 
42 U.S.C. 2991b(d).)
    (b) The following is a nonexclusive list of activities that are 
ineligible for funding under programs authorized by the Native American 
Programs Act of 1974:
    (1) Projects in which a grantee would provide training and/or 
technical assistance (T/TA) to other tribes or Native American 
organizations (``third party T/TA''). However, the purchase of T/TA by a 
grantee for its own use or for its members' use (as in the case of a 
consortium), where T/TA is necessary to carry out project objectives, is 
acceptable;
    (2) Projects that request funds for feasibility studies, business 
plans, marketing plans or written materials, such as manuals, that are 
not an essential part of the applicant's SEDS long-range development 
plan;
    (3) The support of on-going social service delivery programs or the 
expansion, or continuation, of existing social service delivery 
programs;
    (4) Core administration functions, or other activities, that 
essentially support only the applicant's on-going administrative 
functions; however, for Competitive Area 2, Alaska-Specific SEDS 
Projects, ANA will consider funding core administrative capacity 
building projects at the village government level if the village does 
not have governing systems in place;
    (5) The conduct of activities which are not responsive to one or 
more of the three interrelated ANA goals (Governance Development, 
Economic Development, and Social Development);
    (6) Proposals from consortia of tribes that are not specific with 
regard to support from, and roles of member tribes. An application from 
a consortium must have goals and objectives that will create positive 
impacts and outcomes in the communities of its members. ANA will not 
fund activities by a consortium of tribes which duplicates activities 
for which member tribes also receive funding from ANA; and
    (7) The purchase of real estate. (Statutory authority: Sections 803B 
of the Native American Programs Act of 1974, as amended, 42 U.S.C. 
2991b-2)

[61 FR 42820, Aug. 19, 1996]



Sec. 1336.34  Notice of ineligibility.

    (a) Upon a finding by the Commissioner that an organization which 
has applied for funding is ineligible or that the activities proposed by 
an organization are ineligible, the Commissioner shall inform the 
applicant by certified letter of the decision.
    (b) The letter must include the following:
    (1) The legal and factual grounds for the Commissioner's finding 
concerning eligibility;
    (2) A copy of the regulations in this part; and
    (3) The following statement: This is the final decision of the 
Commissioner, Administration for Native Americans. It shall be the final 
decision of the Department unless, within 30 days after receiving this 
decision as provided in Sec. 810(b) of the Native Americans Programs 
Act of 1974, as amended, and 45 CFR part 1336, you deliver or mail (you 
should use registered or certified mail to establish the date) a written 
notice of appeal to the HHS Departmental Appeals Board, 200 Independence 
Avenue, S.W., Washington, D.C. 20201. You shall attach to the notice a 
copy of this decision and note that you intend an appeal. The appeal 
must clearly identify the issue(s) in dispute and contain a statement of 
the applicant's position on such issue(s) along with pertinent facts and 
reasons in support of the position. We are enclosing a copy of 45

[[Page 249]]

CFR part 1336 which governs the conduct of appeals under Sec. 810(b). 
For additional information on the appeals process see 45 CFR 1336.35. 
(Statutory authority: Sections 810(b) of the Native American Programs 
Act of 1974, as amended, 42 U.S.C. 2991h(b).)

[61 FR 42821, Aug. 19, 1996]



Sec. 1336.35  Appeal of ineligibility.

    The following steps apply when seeking an appeal on a finding of 
ineligibility for funding:
    (a) An applicant, which has had its application rejected either 
because it has been found ineligible or because the activities it 
proposes are ineligible for funding by the Commissioner of ANA, may 
appeal the Commissioner's ruling to the HHS Departmental Appeals Board, 
in writing, within 30 days following receipt of ineligibility 
notification.
    (b) The appeal must clearly identify the issue(s) in dispute and 
contain a statement of the applicant's position on such issue(s) along 
with pertinent facts and reasons in support of the position.
    (c) Upon receipt of appeal for reconsideration of a rejected 
application or activities proposed by an applicant, the Departmental 
Appeals Board will notify the applicant by certified mail that the 
appeal has been received.
    (d) The applicant's request for reconsideration will be reviewed by 
the Departmental Appeals Board in accordance with 45 CFR part 16, except 
as otherwise provided in this part.
    (e) The Commissioner shall have 45 days to respond to the 
applicant's submission under paragraph (a) of this section.
    (f) The applicant shall have 20 days to respond to the 
Commissioner's submission and the parties may be requested to submit 
additional information within a specified time period before closing the 
record in the appeal.
    (g) The Departmental Appeals Board will review the record in the 
appeal and provide a final written decision within 30 days following the 
closing of the record, unless the Board determines for good reason that 
a decision cannot be issued within this time period and so notifies the 
parties.
    (h) If the Departmental Appeals Board determines that the applicant 
is eligible or that the activities proposed by the applicant are 
eligible for funding, such eligibility shall not be effective until the 
next cycle of grant proposals are considered by the Administration for 
Native Americans. (Statutory authority: Sections 810(b) of the Native 
American Programs Act of 1974, as amended, 42 U.S.C. 2991h(b).)

[61 FR 42822, Aug. 19, 1996]



                          Subpart D_Evaluation



Sec. 1336.40  General.

    Progress reports and continuation applications must contain 
sufficient information for ANA to determine the extent to which the 
recipient meets ANA project evaluation standards. Sufficient information 
means information adequate to enable ANA to compare the recipient's 
accomplishments with the goals and activities of the approved work plan 
and with ANA project evaluation criteria.

(Approved by the Office of Management and Budget under control numbers 
0980-0155 and 0980-0144)



                Subpart E_Financial Assistance Provisions



Sec. 1336.50  Financial and administrative requirements.

    (a) General. The following HHS regulations apply to all grants 
awarded under this part:
    45 CFR Part 16 Department grant appeals process.
    45 CFR Part 46 Protection of human subjects.
    45 CFR part 75--Uniform Administrative Requirements, Cost 
Principles, and Audit Requirements for HHS Awards
    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 hearing under part 80.
    45 CFR Part 84 Nondiscrimination on the basis of handicap in 
federally assisted programs.

[[Page 250]]

    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.
    (b) Cost sharing or matching--(1) Policy. Recipients of financial 
assistance under sections 803, 804, and 805 of the Act are required to 
provide a matching share of 20 percent of the approved cost of the 
assisted project.

This requirement may be waived in accordance with the criteria in Sec. 
1336.50(b)(3). The matching share requirement may be met using either 
cash or in-kind contributions.
    (2) Application. If an applicant wishes to request a waiver of the 
requirement for a 20 percent non-Federal matching share, it must include 
with is application for funding a written justification that clearly 
explains why the applicant cannot provide the matching share and how it 
meets the criteria.
    (3) Criteria. Both of the following criterial must be met for an 
applicant to be eligible for a waiver of the non-Federal matching 
requirement:
    (i) Applicant lacks the available resources to meet part or all of 
the non-Federal matching requirement. This must be documented by an 
institutional audit if available, or a full disclosure of applicant's 
total assets and liabilities.
    (ii) Applicant can document that reasonable efforts to obtain cash 
or inkind contributions for the purposes of the project from third 
parties have been unsuccessful. Evidence of such efforts can include 
letters from possible sources of funding indicating that the requested 
resources are not available for that project. The requests must be 
appropriate to the source in terms of project purpose, applicant 
eligibility, and reasonableness of the request.
    (4) Approval. For a waiver to be approved, ANA must determine that 
it will not prevent the award of other grants at levels it believes are 
desirable for the purposes of the program. Waiver of all or part of the 
non-Federal share shall apply only to the budget period for which 
application was made.
    (c) Maintenance of effort. (1) Applications for financial assistance 
under this Part must include either a statement of compliance with the 
maintenance of effort requirement contained in section 803(c) of the 
Act, or a request for a waiver, in accordance with criteria established 
in this paragraph.
    (2) To be eligible for a waiver of the maintenance of effort 
requirement, the applicant must demonstrate to ANA that the organization 
whose funds previously supported the project discontinued its support:
    (i) As a result of funding limitations; and
    (ii) Not as a result of an adverse evaluation of the project's 
purpose or the manner in which it was conducted; and
    (iii) Not because it was anticipated that Federal funds would 
replace the original source of project funding.
    (3) In addition, the applicant must demonstrate in the request for a 
waiver that the maintenance of effort requirement would result in 
insurmountable hardship for the recipient or would otherwise be 
inconsistent with the purposes of this part.
    (d) Delegation of project operations. (1) Each subgrant awarded to a 
delegate agency must have specific prior approval by ANA. Such 
delegation must be formalized by written agreement.
    (2) The agreement must specify the activities to be performed by the 
delegate agency, the time schedule, the policies and procedures to be 
followed, the dollar limitations, and the costs allowed. The applicant 
must submit a budget for each delegate agency as part of its 
application.
    (e) Unallowable costs. ANA funds may not be used by recipients to 
purchase real property.
    (f) Office of the Chief Executive. The costs of salaries and 
expenses of the Office of Chief Executive of a federally recognized 
Indian tribal government (as defined in Sec. 75.2 of this title ) are 
allowable, provided that such costs exclude any portion of salaries and 
expenses of the Office of Chief Executive that are a cost of general 
government and provided they are related to a project assisted under 
this part.

[48 FR 55821, Dec. 15, 1983, as amended at 81 FR 3022, Jan. 20, 2016]

[[Page 251]]



Sec. 1336.51  Project period.

    The Notice of Financial Assistance Awarded will specify the period 
for which support is intended, although the Department makes funding 
commitments only for one budget period at a time. Financial assistance 
under section 803 of the Act may be ongoing, subject to policy decisions 
and funding limitations.



Sec. 1336.52  Appeals.

    (a) Right to appeal. Recipients whose financial assistance has been 
suspended or terminated, or whose non-competing continuation 
applications for refunding have been denied, may appeal such decisions 
using the procedures described in this section. Denial of an application 
for refunding means the refusal to fund a non-competing continuation 
application for a budget period within a previously approved project 
period.
    (b) Suspension, termination, and denial of funding. Procedures for 
and definitions of suspension and termination of financial assistance 
are published in 45 CFR 75.371 through 75.380. Appeals from a denial of 
refunding will be treated the same procedurally as appeals to 
termination of financial assistance. The term ``denial of refunding'' 
does not include policy decisions to eliminate one or more activities of 
an approved project. A decision not to fund an application at the end of 
the recipients's project period is not a ``denial of refunding'' and is 
not subject to appeal.
    (c) Hearings. (1) A recipient shall be given an initial written 
notice at least thirty (30) days prior to the suspension or termination 
of financial assistance except in emergency situations, which occur when 
Federal property is in imminent danger of dissipation, or when life, 
health, or safety is endangered. During this period of time, the 
recipient has the opportunity to show cause to ANA why such action 
should not be taken.
    (2) A recipient who has received final written notice of termination 
or denial of refunding, or whose financial assistance will be suspended 
for more than 30 days, or who has other appealable disputes with ANA as 
provided by 45 CFR part 16 may request review by the Departmental Grant 
Appeals Board under the provisions of 45 CFR part 16.
    (3) If a recipient appeals a suspension of more than 30 days which 
subsequently results in termination of financial assistance, both 
actions may be considered simultaneously by the Departmental Grant 
Appeals Board.

[48 FR 55821, Dec. 15, 1983, as amended at 81 FR 3022, Jan. 20, 2016]



   Subpart F_Native Hawaiian Revolving Loan Fund Demonstration Project

    Authority: 88 Stat. 2324, 101 Stat. 976 (42 U.S.C. 2991, et seq.).

    Source: 53 FR 23969, June 24, 1988; 53 FR 28223, July 27, 1988; 54 
FR 3452, Jan. 24, 1989, unless otherwise noted.



Sec. 1336.60  Purpose of this subpart.

    (a) The Administration for Native Americans will award a five-year 
demonstration grant to one agency of the State of Hawaii or to one 
community-based Native Hawaiian organization whose purpose is the 
economic and social self-sufficiency of Native Hawaiians to develop 
procedures for and to manage a revolving loan fund for Native Hawaiian 
individuals and organizations in the State of Hawaii. (section 
830A(a)(1))
    (b) This subpart sets forth the requirements that the organization 
or agency selected to administer the revolving loan fund must meet and 
the terms and conditions applicable to loans made to borrowers from the 
loan fund.



Sec. 1336.61  Purpose of the Revolving Loan Fund.

    The purpose of the Native Hawaiian Revolving Loan Fund is to provide 
funding not available from other sources on reasonable terms and 
conditions to:
    (a) Promote economic activities which result in expanded 
opportunities for Native Hawaiians to increase their ownership of, 
employment in, or income from local economic enterprise;
    (b) Assist Native Hawaiians to overcome specific gaps in local 
capital markets and to encourage greater private-

[[Page 252]]

sector participation in local economic development activities; and
    (c) Increase capital formation and private-sector jobs for Native 
Hawaiians. (section 803A(a)(1)(A))



Sec. 1336.62  Definitions.

    Applicant means an applicant for a loan from the Native Hawaiian 
Revolving Loan Fund. An applicant must be an individual Native Hawaiian 
or a Native Hawaiian organization. If the applicant is a group of people 
organized for economic development purposes, the applicant ownership 
must be 100% Native Hawaiian.
    Commissioner means the Commissioner of the Administration for Native 
Americans.
    Cooperative association means an association of individuals 
organized pursuant to State or Federal law, for the purpose of owning 
and operating an economic enterprise for profit, with profits 
distributed or allocated to patrons who are members of the organization.
    Corporation means an entity organized pursuant to State or Federal 
law, as a corporation, with or without stock, for the purpose of owning 
and operating an economic enterprise.
    Default means failure of a borrower to make scheduled payments on a 
loan, failure to obtain the lender's approval for disposal of assets 
mortgaged as security for a loan, or failure to comply with the 
convenants, obligations or other provisions of a loan agreement.
    Economic enterprise means any Native Hawaiian-owned, commercial, 
industrial, agricultural or other business activity established or 
organized for the purpose of profit.
    Financing statement means the document filed or recorded in country 
or State offices pursuant to the provisions of the Uniform Commercial 
Code as enacted by Hawaii notifying third parties that a lender has a 
lien on the chattel and/or crops of a borrower.
    Loan Administrator means either the agency of the State of Hawaii or 
the community-based Native Hawaiian organization whose purpose is the 
economic and social self-sufficiency of Native Hawaiians selected to 
administer the revolving loan fund.
    Mortgages mean mortgages and deeds of trust evidencing an 
encumbrance of trust or restricted land, mortgages and security 
agreements executed as evidence of liens against crops and chattels, and 
mortgages and deeds of trust evidencing a lien on leasehold interests.
    Native Hawaiian means an individual any of whose ancestors were 
natives of the area which consists of the Hawaiian Islands prior to 
1778.
    Partnership means two or more persons engaged in the same business, 
sharing its profits and risks, and organized pursuant to state or 
Federal law.
    Profits mean the net income earned after deducting operating 
expenses from operating revenues.
    Revolving Loan Fund (RLF) means all funds that are now or are 
hereafter a part of the Native Hawaiian Revolving Loan Fund authorized 
by the Native American Programs Act of 1974, as amended in 1987, and 
supplemented by sums collected in repayment of loans made, including 
interest or other charges on loans and any funds appropriated pursuant 
to section 803A of the Native American Programs Act of 1974, as amended.



Sec. 1336.63  General responsibilities of the Loan Administrator.

    (a) The Loan Administrator will make loans to Native Hawaiian 
organizations and to individual Native Hawaiians for the purpose or 
promoting economic development among Native Hawaiians in the State of 
Hawaii. (Section 803(a)(1)(A).)
    (b) Prior to any loan being made from the RLF, the Loan 
Administrator will develop and obtain the Commissioner's approval of the 
following organizational and administrative materials necessary to 
implement the RLF:
    (1) Goals and strategies;
    (2) Staffing and organizational responsibilities;
    (3) Preapplication and loan screening processes;
    (4) Loan procedures including application forms;
    (5) Criteria and procedures for loan review, evaluation and 
decision-making;
    (6) Loan closing procedures; and

[[Page 253]]

    (7) Procedures for loan servicing, monitoring and provision of 
technical assistance.
    (c) The Loan Administrator will set up fiscal management procedures 
to satisfy the requirements of section 803A of the Native American 
Programs Act and this subpart.
    (d) The Loan Administrator must set up a separate account for the 
RLF into which all payments, interest, charges, and other amounts 
collected from loans made from the RLF will be deposited.



Sec. 1336.64  Development of goals and strategies: Responsibilities
of the Loan Administrator.

    (a) Prior to the approval of any direct loan under the RLF, the Loan 
Administrator will develop and obtain the Commissioner's approval for a 
clear and comprehensive set of goals and strategies for the RLF. The 
goals will specify the results the Loan Administrator expects to 
accomplish from the Revolving Loan Fund, define the RLF's role and 
responsibilities for potential users, and serve as the basis for the 
development of an organizational strategy and operating plan. The RLF 
strategies will provide the Loan Administrator with a sound 
understanding of the economic and market conditions within the Native 
Hawaiian community.
    (b) The following factors shall be considered by the Loan 
Administrator in developing the RLF's goals:
    (1) Employment needs of the local population;
    (2) Characteristics of the local economic base;
    (3) Characteristics of the local capital base and the gaps in the 
local availability of business capital;
    (4) Local resources for economic development and their availability; 
and
    (5) Goals and strategies of other local organizations involved in 
economic development.
    (c) The loan fund strategies developed by the Revolving Loan Fund 
must include the following:
    (1) Business Targeting Strategy: to determine which types of 
businesses are to be targeted by the loan fund. The Loan Administrator 
will develop procedures to ensure that the loans made are directed to 
Native Hawaiians.
    (2) Financing Strategy: to determine the types of financing the loan 
fund will provide;
    (3) Business Assistance Strategy: to identify the possible or 
potential management problems of a borrower and develop a workable plan 
for providing borrowers with the needed management assistance;
    (4) Marketing Strategy: to generate applications from potential 
borrowers and to generate the support and participation of local 
financial institutions;
    (5) Capital Base Management Strategy: to develop and allocate the 
financial resources of the fund in the most effective possible way to 
meet the need or demand for financing; and
    (6) Accountability Strategy: to develop policies and mechanisms to 
hold borrowers accountable for providing the public benefits promised 
(e.g. jobs) in return for financing; to ensure that, until expenditure, 
loan proceeds are held by the borrower in secured, liquid financial 
instruments; to hold borrowers accountable for upholding the commitments 
made prior to the loan; and to develop the methods used by the RLF to 
enforce these commitments.



Sec. 1336.65  Staffing and organization of the Revolving Loan Fund:
Responsibilities of the Loan Administrator.

    Prior to the approval of any direct loan under the RLF, the Loan 
Administrator must develop and obtain the Commissioner's approval for 
the RLF's organization table, including:
    (a) The structure and composition of the Board of Directors of the 
RLF;
    (b) The staffing requirements for the RLF, with position 
descriptions and necessary personnel qualifications;
    (c) The appointments to the advisory loan review committee; and
    (d) The roles and responsibilities of the Board, staff and loan 
review committee.



Sec. 1336.66  Procedures and criteria for administration of the
Revolving Loan Fund: Responsibilities of the Loan Administrator.

    Prior to the approval of any direct loan under the RLF, the Loan 
Administrator must develop and obtain the

[[Page 254]]

Commissioner's approval for the following procedures:
    (a) Preapplication and loan screening procedures. Some factors to be 
considered in the loan screening process are:
    (1) General eligibility criteria;
    (2) Potential economic development criteria;
    (3) Indication of business viability;
    (4) The need for RLF financing; and
    (5) The ability to properly utilize financing.
    (b) Application process. The application package includes forms, 
instructions, and policies and procedures for the loan application. The 
package must also include instructions for the development of a business 
and marketing plan and a financing proposal from the applicant.
    (c) Loan evaluation criteria and procedures. The loan evaluation 
must include the following topics:
    (1) General and specific business trends;
    (2) Potential market for the product or service;
    (3) Marketing strategy;
    (4) Management skills of the borrower;
    (5) Operational plan of the borrower;
    (6) Financial controls and accounting systems;
    (7) Financial projections; and
    (8) Structure of investment and financing package.
    (d) Loan decision-making process. Decision-making on a loan 
application includes the recommendations of the staff, the review by the 
loan review committee and the decision by the Board.
    (e) Loan closing process. The guidelines for the loan closing 
process include the finalization of loan terms; conditions and 
covenants; the exercise of reasonable and proper care to ensure 
adherence of the proposed loan and borrower's operations to legal 
requirements; and the assurance that any requirement for outside 
financing or other actions on which disbursement is contingent are met 
by the borrower.
    (f) Loan closing documents. Documents used in the loan closing 
process include:
    (1) Term Sheet: an outline of items to be included in the loan 
agreement. It should cover the following elements:
    (i) Loan terms;
    (ii) Security interest;
    (iii) Conditions for closing the loan;
    (iv) Covenants, including reporting requirements;
    (v) Representations and warranties;
    (vi) Defaults and remedies; and
    (vii) Other provisions as necessary.
    (2) Closing Agenda: an outline of the loan documents, the background 
documents, and the legal and other supporting documents required in 
connection with the loan.
    (g) Loan servicing and monitoring. The servicing of a loan will 
include collections, monitoring, and maintenance of an up-to-date 
information system on loan status.
    (1) Collections: To include a repayment schedule, invoice for each 
loan payment, late notices, provisions for late charges.
    (2) Loan Monitoring: To include regular reporting requirements, 
periodic analysis of corporate and industry information, scheduled 
telephone contact and site visits, regular loan review committee 
oversight of loan status, and systematic internal reports and files.



Sec. 1336.67  Security and collateral: Responsibilities of the Loan
Administrator.

    The Loan Administrator may require any applicant for a loan from the 
RLF to provide such collateral as the Loan Administrator determines to 
be necessary to secure the loan. (Section 803A(b)(3))
    (a) As a Credit Factor. The availability of collateral security 
normally is considered an important factor in making loans. The types 
and amount of collateral security required should be governed by the 
relative strengths and weaknesses of other credit factors. The taking of 
collateral as security should be considered with respect to each loan. 
Collateral security should be sufficient to provide the lender 
reasonable protection from loss in the case of adversity, but such 
security or lack thereof should not be used as the primary basis for 
deciding whether to extend credit.
    (b) Security Interests. Security interests which may be taken by the 
lender include, but are not limited to, liens on

[[Page 255]]

real or personal property, including leasehold interests; assignments of 
income and accounts receivable; and liens on inventory or proceeds of 
inventory sales as well as marketable securities and cash collateral 
accounts.
    (1) Motor vehicles. Liens ordinarily should be taken on licensed 
motor vehicles, boats or aircraft purchased hereunder in order to be 
able to transfer title easily should the lender need to declare a 
default or repossess the property.
    (2) Insurance on property secured. Hazard insurance up to the amount 
of the loan or the replacement value of the property secured (whichever 
is less) must be taken naming the lender as beneficiary. Such insurance 
includes fire and extended coverage, public liability, property damage, 
and other appropriate types of hazard insurance.
    (3) Appraisals. Real property serving as collateral security must be 
appraised by a qualified appraiser. For all other types of property, a 
valuation shall be made using any recognized, standard technique 
(including standard reference manuals), and this valuation shall be 
described in the loan file.
    (c) Additional security. The lender may require collateral security 
or additional security at any time during the term of the loan if after 
review and monitoring an assessment indicates the need for such 
security.



Sec. 1336.68  Defaults, uncollectible loans, liquidations: 
Responsibilities of the Loan Administrator.

    (a) Prior to making loans from the RLF, the Loan Administrator will 
develop and obtain the Commissioner's approval for written procedures 
and definitions pertaining to defaults and collections of payments. 
(section 803A(b)(4))
    (b) The Loan Administrator will provide a copy of such procedures 
and definitions to each applicant for a loan at the time the application 
is made. (section 803A(b)(4))
    (c) The Loan Administrator will report to the Commissioner whenever 
a loan recipient is 90 days in arrears in the repayment of principal or 
interest or has failed to comply with the terms of the loan agreement. 
After making reasonable efforts to collect amounts payable, as specified 
in the written procedures, the Loan Administrator shall notify the 
Commissioner whenever a loan is uncollectible at reasonable cost. The 
notice shall include recommendations for future action to be taken by 
the Loan Administrator. (section 803A(c) (1) and (2))
    (d) Upon receiving such notices, the Commissioner will, as 
appropriate, instruct the Loan Administrator:
    (1) To demand the immediate and full repayment of the loan;
    (2) To continue with its collection activities;
    (3) To cancel, adjust, compromise, or reduce the amount of such 
loan;
    (4) To modify any term or condition of such loan, including any term 
or condition relating to the rate of interest or the time of payment of 
any installment of principal or interest, or portion thereof, that is 
payable under such loan;
    (5) To discontinue any further advance of funds contemplated by the 
loan agreement;
    (6) To take possession of any or all collateral given as security 
and in the case of individuals, corporations, partnerships or 
cooperative associations, the property purchased with the borrowed 
funds;
    (7) To prosecute legal action against the borrower or against the 
officers of the borrowing organization;
    (8) To prevent further disbursement of credit funds under the 
control of the borrower;
    (9) To assign or sell at a public or private sale, or otherwise 
dispose of for cash or credit any evidence of debt, contract, claim, 
personal or real property or security assigned to or held by the Loan 
Administrator; or
    (10) To liquidate or arrange for the operation of economic 
enterprises financed with the revolving loan until the indebtedness is 
paid or until the Loan Administrator has received acceptable assurance 
of its repayment and compliance with the terms of the loan agreement. 
(Section 803A(c)(2)(B))

[[Page 256]]



Sec. 1336.69  Reporting requirements: Responsibilities of the 
Loan Administrator.

    (a) The Loan Administrator will maintain the following internal 
information and records:
    (1) For each borrower: The loan repayment schedule, log of telephone 
calls and site visits made with the date and the items discussed, 
correspondence with the borrower, progress reports and analyses.
    (2) Monthly status of all outstanding loans, noting all overdue 
payments.
    (3) Monthly status of the investments of the revolving loan fund 
monies not currently used for loans.
    (4) Monthly records on the revenue generated by the loan fund from 
interest charges and late charges.
    (5) Monthly administrative costs of the management of the loan fund 
and the sources of the monies to support the administrative costs.
    (b) The Loan Administrator must submit a quarterly report to the 
Commissioner. The report may be in a format of the choice of the Loan 
Administrator as long as it includes at a minimum the following topics:
    (1) For each borrower:
    (i) Name of the borrower;
    (ii) Economic development purpose(s) of the loan;
    (iii) Financing of the loan by source;
    (iv) Loan status (current/delinquent/paid);
    (v) Principal and interest outstanding; and
    (vi) Amount delinquent/defaulted, if any.
    (2) Financial status of the RLF:
    (i) Administrative cost expenditures;
    (ii) Level of base capital;
    (iii) Level of current capital;
    (iv) Amount of ANA funding;
    (v) Matching share;
    (vi) Other direct funding of the RLF;
    (vii) Program income, including interest on loans, earnings from 
investments, fee charges;
    (viii) Loans made;
    (ix) Losses on loans;
    (x) Principal and interest outstanding;
    (xi) Loans repaid;
    (xii) Delinquent loans; and
    (xiii) Collateral position of the RLF (the value of collateral as a 
percent of the outstanding balance on direct loans).
    (c) The Loan Administrator must submit a semi-annual report to the 
Commissioner containing an analysis of the RLF progress to date.
    (d) The Loan Administrator must submit to the Department a quarterly 
SF-269, Financial Status Report, or any equivalent report required by 
the Department.



Sec. 1336.70  Technical assistance: Responsibilities of the Loan 
Administrator.

    The Loan Administrator will assure that competent management and 
technical assistance is available to the borrower consistent with the 
borrower's knowledge and experience and the nature and complexity of the 
economic enterprise being financed by the RLF. Consultants, RLF staff, 
and members of the loan review committee and Board may be used to assist 
borrowers. (section 803A(d)(1)(B))



Sec. 1336.71  Administrative costs.

    Reasonable administrative costs of the RLF may be paid out of the 
loan fund. The grant award agreement between the Loan Administrator and 
ANA will set forth the allowable administrative costs of the loan fund 
during the five-year demonstration period. (sections 803A(a)(2) and 
803A(d)(1)(A))



Sec. 1336.72  Fiscal requirements.

    (a) Any portion of the revolving loan fund that is not required for 
expenditure must be invested in obligations of the United States or in 
obligations guaranteed or insured by the United States.
    (b) Loans made under the RLF will be for a term that does not exceed 
five years.
    (c) No loan may be made by the RLF after November 29, 1992, the 
close of the five-year period of the demonstration project. (section 
803A(b)(6))
    (d) All monies that are in the revolving loan fund on November 29, 
1992 and that are not otherwise needed (as determined by the 
Commissioner) to carry out the provisions of this subpart must be 
deposited in the Treasury of the United States as miscellaneous 
receipts. The Commissioner will make this determination based on 
reports,

[[Page 257]]

audits and other appropriate documents as determined by the 
Commissioner. The Commissioner will take into consideration the costs 
necessary to collect loans outstanding beyond November 29, 1992, which 
costs may be paid from interest and loan charges collected by the Fund 
and in the Fund as of November 29, 1992. To use monies in the Fund for 
the costs of collection after November 29, 1992, the Commissioner must 
give prior approval for such use.
    (e) All monies deposited in the revolving loan fund after November 
29, 1992 must be deposited in the Treasury of the United States as 
miscellaneous receipts.
    (f) After November 29, 1992, the Loan Administrator will assume 
responsibility for the collection of all outstanding loans without 
additional financial assistance from ANA.



Sec. 1336.73  Eligible borrowers.

    (a) Loans may be made to eligible applicants only if the Loan 
Administrator determines that the applicant is unable to obtain 
financing on reasonable terms and conditions from other sources such as 
banks, Small Business Administration, Production Credit Associations, 
Federal Land Banks; and
    (b) Only if there is a reasonable prospect that the borrower will 
repay the loan. (section 803A(b)(1) (A) and (B))
    (c) The Loan Administrator will determine an applicant's inability 
to obtain financing elsewhere on reasonable terms and conditions from 
documentation provided by the applicant.
    (d) Those eligible to receive loans from the revolving loan fund 
are:
    (1) Native Hawaiian individuals.
    (2) Native Hawaiian non-profit organizations.
    (3) Native Hawaiian businesses.
    (4) Native Hawaiian cooperative associations.
    (5) Native Hawaiian partnerships.
    (6) Native Hawaiian associations.
    (7) Native Hawaiian corporations.



Sec. 1336.74  Time limits and interest on loans.

    (a) Loans made under the RLF will be for a term that does not exceed 
5 years.
    (b) Loans will be made to approved borrowers at a rate of interest 
that is 2 percentage points below the average market yield on the most 
recent public offering of United States Treasury bills occurring before 
the date on which the loan is made. (section 803A(b)(2) (A) and (B))



Sec. 1336.75  Allowable loan activities.

    The following are among those activities for which a loan may be 
made from the RLF:
    (a) The establishment or expansion of businesses engaged in 
commercial, industrial or agricultural activities, such as farming, 
manufacturing, construction, sales, service;
    (b) The establishment or expansion of cooperatives engaged in the 
production and marketing of farm products, equipment, or supplies; the 
manufacture and sale of industrial, commercial or consumer products; or 
the provision of various commercial services;
    (c) Business or job retention;
    (d) Small business development;
    (e) Private sector job creation; and
    (f) Promotion of economic diversification, e.g. targeting firms in 
growth industries that have not previously been part of a community's 
economic base.



Sec. 1336.76  Unallowable loan activities.

    The following activities are among those activities not eligible for 
support under the revolving loan fund:
    (a) Loans to the Loan Administrator or any representative or 
delegate of the Loan Administrator (section 803A(b)(5));
    (b) Loans which would create a potential conflict-of-interest for 
any officer or employee of the Loan Administrator; loan activities which 
directly benefit these individuals, or persons related to them by 
marriage, or law.
    (c) Eligible activities which are moved from the State of Hawaii;
    (d) Investing in high interest account, certificates of deposit or 
other investments;
    (e) Relending of the loan amount by the borrower;
    (f) The purchase of land or buildings;
    (g) The construction of buildings; and
    (h) Purchasing or financing equity in private businesses.

[[Page 258]]



Sec. 1336.77  Recovery of funds.

    (a) Funds provided under this Subpart may be recovered by the 
Commissioner for both costs of administration of the Loan Fund and 
losses incurred by the Fund (hereafter jointly referred to as ``costs'') 
under the following circumstances:
    (1) Whenever claimed costs are unallowable under the Native 
Americans Programs Act of 1974, as amended, or under 45 CFR part 75, 
subpart E, or both;
    (2) For costs for loans made to ineligible persons or entities as 
defined in Sec. 1336.73;
    (3) For costs connected with the default of a borrower when the Loan 
Administrator has failed to perfect any security interest or when the 
Loan Administrator has failed to obtain collateral when provision of 
collateral is a condition of a loan.
    (4) For costs connected with any default when the Loan Administrator 
has failed to perform a proper check of an applicant's credit;
    (5) For costs whenever the Loan Administrator has failed to notify 
the Commission of loans at risk as required by Sec. 1336.68 of these 
regulations, and as may be required by the procedures approved pursuant 
to that regulation;
    (6) For costs whenever the Loan Administrator has failed to follow 
properly instructions provided to it by the Commissioner pursuant to 
Sec. 1336.68(d) of these regulations;
    (7) For costs which are incurred due to faulty record keeping, 
reporting, or both; or
    (8) For costs which are in connection with any activity or action 
which violates any Federal or State law or regulation not specifically 
identified in these regulations.
    (b) Whenever the Commissioner determines that funds have been 
improperly utilized or accounted for, he will issue a disallowance 
pursuant to the Act and to 45 CFR part 75 and will notify the Loan 
Administrator of its appeal rights, which appeal must be taken pursuant 
to 45 CFR part 16.
    (c) If a disallowance is taken and not appealed, or if it is 
appealed and the disallowance is upheld by the Departmental Grant 
Appeals Board, the Loan Administrator must repay the disallowed amount 
to the Loan Fund within 30 days, such repayment to be made with non-
Federal funds.

[53 FR 23969, June 24, 1988; 53 FR 28223, July 27, 1988; 54 FR 3452, 
Jan. 24, 1989, as amended at 81 FR 3022, Jan. 20, 2016]

[[Page 259]]



                        SUBCHAPTER E_ [RESERVED]



[[Page 260]]



SUBCHAPTER F_THE ADMINISTRATION FOR CHILDREN, YOUTH AND FAMILIES, FAMILY 
                        AND YOUTH SERVICES BUREAU





PART 1351_RUNAWAY AND HOMELESS YOUTH PROGRAM--Table of Contents



                      Subpart A_Definition of Terms

Sec.
1351.1 Significant terms.

           Subpart B_Runaway and Homeless Youth Program Grants

1351.10 What is the purpose of Runaway and Homeless Youth Program 
          grants?
1351.11 Who is eligible to apply for a Runaway and Homeless Youth 
          Program grant?
1351.12 Who gets priority for the award of a Runaway and Homeless Youth 
          Program grant?
1351.13 What are the Federal and non-Federal match requirements under a 
          Runaway and Homeless Youth Program grant?
1351.14 What is the period for which a grant will be awarded?
1351.15 What costs are supportable under a Runaway and Homeless Youth 
          Program grant?
1351.16 What costs are not allowable under a Runaway and Homeless Youth 
          Program grant?
1351.17 How is application made for a Runaway and Homeless Youth Program 
          grant?
1351.18 What criteria has HHS established for deciding which Runaway and 
          Homeless Youth Program grant applications to fund?

                    Subpart C_Additional Requirements

1351.20 What Government-wide and HHS-wide regulations apply to these 
          programs?
1351.21 What confidentiality requirements apply to these programs?
1351.22 What additional requirements apply to these programs?
1351.23 What are the additional requirements that apply to the Basic 
          Center, Transitional Living and Street Outreach Program 
          grants?
1351.24 What are the additional requirements that the Basic Center 
          Program grantees must meet?
1351.25 What are the additional requirements that the Transitional 
          Living Program and Maternity Group Home grantees must meet?
1351.26 What are the additional requirements that both the Basic Center 
          and Transitional Living Program grantees must meet?
1351.27 What are the additional requirements that the Street Outreach 
          Program grantees must meet?

   Subpart D_What are the Runaway and Homeless Youth Program-Specific 
                         Performance Standards?

1351.30 What performance standards must Basic Center Program grantees 
          meet?
1351.31 What performance standards must Transitional Living Program 
          grantees, including Maternity Group Homes, meet?
1351.32 What performance standards must Street Outreach Program grantees 
          meet?

    Authority: 42 U.S.C. 5701.

    Source: 43 FR 55635, Nov. 28, 1978, unless otherwise noted.



                      Subpart A_Definition of Terms



Sec. 1351.1  Significant Terms.

    For the purposes of this part:
    Act means the Runaway and Homeless Youth Act as amended, 42 U.S.C. 
5701 et seq.
    Aftercare means additional services provided beyond the period of 
residential stay that offer continuity and supportive follow-up to youth 
served by the program.
    Background check means the review of an individual employee's or 
employment applicant's personal information, which shall include State 
or Tribal criminal history records (including fingerprint checks); 
Federal Bureau of Investigation criminal history records, including 
fingerprint checks, to the extent FSYB determines this to be practicable 
and specifies the requirement in a Funding Opportunity Announcement that 
is applicable to a grantee's award; a child abuse and neglect registry 
check, to the extent FSYB determines this to be practicable and 
specifies the requirement in a Funding Opportunity Announcement that is 
applicable to a grantee's award; and a sex

[[Page 261]]

offender registry check for all employees, consultants, contractors, and 
volunteers who have regular, unsupervised contact with individual youth, 
and for all adult occupants of host homes. As appropriate to job 
functions, it shall also include verification of educational credentials 
and employment experience, and an examination of the individual's 
driving records (for those who will transport youth), and professional 
licensing records.
    Case management means identifying and assessing the needs of the 
client, including consulting with the client, and, as appropriate, 
arranging, coordinating, monitoring, evaluating, and advocating for a 
package of services to meet the specific needs of the client.
    Client means a runaway, homeless, or street youth, or a youth at 
risk of running away or becoming homeless, who is served by a program 
grantee.
    Congregate care means a shelter type that combines living quarters 
and restroom facilities with centralized dining services, shared living 
spaces, and access to social and recreational activities, and which is 
not a family home.
    Contact means the engagement between Street Outreach Program staff 
and youth who are at risk of homelessness or runaway status or homeless 
youth in need of services that could reasonably lead to shelter or 
significant harm reduction. Contact may occur on the streets, at a drop-
in center, or at other locations known to be frequented by homeless, 
runaway, or street youth.
    Core competencies of youth worker means the ability to demonstrate 
skills in six domain areas:
    (1) Professionalism (including, but not limited to, consistent and 
reliable job performance, awareness and use of professional ethics to 
guide practice);
    (2) Applied positive youth development approach (including, but not 
limited to, skills to develop a positive youth development plan and 
identifying the client's strengths in order to best apply a positive 
youth development framework);
    (3) Cultural and human diversity (including, but not limited to, 
gaining knowledge and skills to meet the needs of clients of a different 
race, ethnicity, nationality, religion/spirituality, gender identity/
expression, sexual orientation);
    (4) Applied human development (including, but not limited to, 
understanding the developmental needs of those at risk and with special 
needs);
    (5) Relationship and communication (including, but not limited to, 
working with clients in a collaborative manner); and
    (6) Developmental practice methods (including, but not limited to, 
utilizing methods focused on genuine relationships, health and safety, 
intervention planning).
    Counseling services means the provision of guidance, support, 
referrals for services including, but not limited to, health services, 
and advice to runaway or otherwise homeless youth and their families, as 
well as to yo