Termination of the Commonwealth of Puerto Rico's Protection and Advocacy for Persons With Developmental Disabilities Award, 5555-5559 [2015-01857]
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Federal Register / Vol. 80, No. 21 / Monday, February 2, 2015 / Notices
State (DOS) or the U.S. Department of
Homeland Security (DHS).
Participating voluntary agencies agree
to match the ORR grant with cash and
in-kind contributions of goods and
services from the community. Currently,
ORR awards $2 for every $1 raised by
5555
the agency up to a maximum of $2,200
in federal funds per client.
Single-source awards are made to the
following organizations:
Grantee name
Location
Total
federal
annual
award
Church World Service/Immigration & Refugee Program ........................................................
Domestic and Foreign Missionary Society of the Protestant Episcopal Church of the U.S.A
Ethiopian Community Development Council/Refugee Resettlement Program ......................
HIAS, Inc. (Hebrew Immigrant Aid Society)/Refugee and Immigrant Services .....................
International Rescue Committee/Resettlement ......................................................................
Lutheran Immigration & Refugee Service ..............................................................................
United States Conference of Catholic Bishops ......................................................................
US Committee for Refugees and Immigrants ........................................................................
World Relief Corporation of National Association of Evangelicals/Refugee & Immigration
Programs.
New York, NY ....................................
New York, NY ....................................
Arlington, VA ......................................
New York, NY ....................................
New York, NY ....................................
Baltimore, MD ....................................
Washington, DC .................................
Arlington, VA ......................................
Baltimore, MD ....................................
$5,885,000
4,241,600
2,059,200
1,566,400
9,143,200
7,530,600
18,977,200
11,501,600
4,404,400
Statutory Authority: Section 412(c)(1)(A)
of the Immigration and Nationality Act (8
U.S.C. 1522(c)(1)(A); Section 7(a) and (b) of
the Refugee Assistance Extension Act of 1986
(Pub. L. 99–605) (8 U.S.C. 1522 note).
Christopher Beach,
Senior Grants Policy Specialist, Office of
Administration.
[FR Doc. 2015–01841 Filed 1–30–15; 8:45 am]
BILLING CODE 4184–01–P
DEPARTMENT OF HEALTH AND
HUMAN SERVICES
Administration for Community Living
Termination of the Commonwealth of
Puerto Rico’s Protection and
Advocacy for Persons With
Developmental Disabilities Award
Administration for Community
Living, HHS.
ACTION: Notice of Hearing: Termination
of PADD funding. Action to Terminate
the Commonwealth of Puerto Rico’s
Protection and Advocacy for Persons
with Developmental Disabilities (PADD)
Award.
AGENCY:
Pursuant to regulations at 45
CFR part 1386, subpart D, this notice
announces an administrative hearing
regarding termination of Federal
funding (that is, ‘‘the allotment’’) for the
Protection and Advocacy for Persons
with Developmental Disabilities (PADD)
Award to the designated Protection and
Advocacy agency in the Commonwealth
of Puerto Rico: Oficina del Procurador
de las Personas con Impedimentos
(OPPI) (Ombudsman for Persons with
Disabilities). This notice includes the
following information: Who will preside
at the hearing, the organizations or
entities that are parties to the hearing
without making a specific request to
participate, the due dates for those who
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are not parties as of right to file a
petition to participate as a party or as an
amicus curiae, the date and place of the
hearing, how certain procedural
provisions in the applicable regulations
have been modified, and a description
of the issues to be considered at the
hearing.
FOR FURTHER INFORMATION CONTACT:
Carolyn Reines-Graubard, Director,
Appellate Division, Departmental
Appeals Board, Cohen Building, Rm. G–
644, MS 6127, 330 Independence Ave.
SW., Washington, DC 20201, 202–565–
0116.
Background: The Developmental
Disabilities Assistance and Bill of Rights
Act of 2000 (DD Act) (codified at 42
U.S.C. 15001 et seq.) provides states and
territories with federal money for the
purpose of assuring that ‘‘individuals
with developmental disabilities and
their families participate in the design
of and have access to needed
community services, individualized
supports, and other forms of assistance
that promote self-determination,
independence, productivity, and
integration and inclusion in all facets of
community life, through culturally
competent programs authorized’’ by the
Act. DD Act § 101(b) (42 U.S.C.
15001(b)). While a number of programs
are authorized under the DD Act, the
relevant program for this proceeding is
the Protection and Advocacy (P&A)
system, described in Subtitle C of Title
I of the DD Act and, relatedly, the State
Council on Developmental Disabilities
(SCDD), described in Subtitle B of such
Title.
P&A systems are to ‘‘protect the legal
and human rights of individuals with
developmental disabilities.’’ DD Act
§ 101(b)(2) (42 U.S.C. 15001(b)(2)). State
Councils are to engage in ‘‘advocacy,
capacity building, and systemic change
activities that are consistent with the
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purpose and policies of the Act,’’ DD
Act § 101(b)(1)(A) (42 U.S.C.
15001(b)(1)(A)), and that ‘‘contribute[]
to a coordinated, consumer- and familycentered, consumer- and familydirected, comprehensive system that
includes needed community services,
individualized supports, and other
forms of assistance that promote selfdetermination for individuals with
developmental disabilities and their
families.’’ DD Act § 101(b)(1)(B) (42
U.S.C. 15001(b)(1)(B)). As a condition of
funding the SCDD, the State must
establish a P&A system to ‘‘to protect
and advocate the rights of individuals
with developmental disabilities.’’ DD
Act § 143(a)(1) (42 U.S.C. 15043(a)(1)).
Under the DD Act, a P&A system must
have certain powers. Such powers
include, but are not limited to, the
authority to ‘‘pursue legal,
administrative, and other appropriate
remedies or approaches to ensure the
protection of, and advocacy for, the
rights of such individuals within the
State who are or who may be eligible for
treatment, services, or habilitation, or
who are being considered for a change
in living arrangements, with particular
attention to members of ethnic and
racial minority groups,’’ as well as to
‘‘investigate incidents of abuse and
neglect . . . if the incidents are reported
to the system or if there is probable
cause to believe that the incidents
occurred.’’ DD Act § 143(a)(2)(A)(i) and
(B) (42 U.S.C. 15043(a)(2)(A)(i) and (B)).
Pertinent regulations implementing
the DD Act are contained in 45 CFR
parts 1385 and 1386. Part 1385 includes
general requirements applicable to most
programs and projects authorized under
the DD Act, including both the SCDDs
and P&A systems. Part 1386 is specific
to SCDDs and P&A systems. Subpart A
of Part 1386 contains regulations
applicable to both programs; Subpart B
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is specific to P&A systems; Subpart C is
specific to SCDDs, and Subpart D
contains the practices and procedures
for administrative hearings, such as the
hearing in this proceeding.
Designation of Presiding Officer:
Section 1386.100(a) of 45 CFR states
that the ‘‘presiding officer at a hearing
must be the Assistant Secretary’’—
defined in section 1386.80 as the
Assistant Secretary for Children and
Families—‘‘or someone designated by
the Assistant Secretary.’’ In 2013, the
Assistant Secretary for Children and
Families delegated his authorities under
the DD Act to the Administrator,
Administration for Community Living
(ACL). 78 FR 16510 (Mar. 15, 2013). The
Administrator, ACL, has designated
Leslie A. Sussan, a member of the
Departmental Appeals Board (DAB), as
the Presiding Officer at the hearing. The
Presiding Officer will certify the entire
record, including recommended
findings and a proposed decision, to the
Administrator, ACL, who will issue a
decision in accordance with 45 CFR
1386.111.
Requests for Participation: Pursuant
to 45 CFR 1386.94(a), the
Administration for Intellectual and
Developmental Disabilities (AIDD)
within ACL; OPPI; the Puerto Rico
Developmental Disabilities Council
(PRDDC); and the Office of the
Governor, on behalf of the
Commonwealth of Puerto Rico, are
parties to the hearing without making a
specific request to participate. Any
individual or group not a party as of
right under section 1386.94(a) that
wishes to participate as a party must file
a petition containing the information
required by section 1386.94(b)(2)(i)–(iv)
with the Presiding Officer no later than
15 days after the date of publication of
this notice in the Federal Register.
Any interested person or organization
that wishes to participate as an amicus
curiae must file a petition that contains
the information required by section
1386.94(c)(1)(i)–(iii). The petition must
also state whether the interested person
or organization will submit a written
statement of position prior to the
hearing and whether it wishes to
present a brief oral statement at the
hearing and/or to submit a brief or
written statement at such time as the
parties submit briefs. The petition must
be filed with the Presiding Officer at
least 15 days before the scheduled
hearing date below in order to facilitate
hearing arrangements.
If the deadline for filing a petition
falls on a federal non-workday (a
Saturday, Sunday, legal holiday, or a
day which by statute or Executive Order
is declared to be a non-workday for
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federal employees), the submission may
be filed on the next federal workday.
Effect of a Final Determination: The
decision of the Presiding Officer will be
reviewed by the Administrator of ACL,
in accordance with 45 CFR 1386.111. If
the Administrator reaches a final
determination that OPPI does not
comply with Federal requirements, and
determines that Federal funding (i.e.,
allotments) will not be made pursuant
to such decision, thus terminating the
PADD grant, such decision will also
terminate funding for the
Commonwealth’s SCDD in addition to
the P&A. Pursuant to section 143(a) of
the DD Act (42 U.S.C. 15043(a)), as well
as 45 CFR 1386.21(a), in order for a
State to receive an allotment for its
SCDD, the State must have in effect a
P&A system meeting Federal
requirements.
Other HHS programs providing grants
to P&A organizations incorporate the DD
Act. These programs are:
(a) The Protection and Advocacy for
Individuals with Mental Illness (PAIMI)
program. Specifically, 42 U.S.C.
10802(2) defines an eligible system as a
system ‘‘established in a State to protect
and advocate the rights of persons with
developmental disabilities under
subtitle C of the Developmental
Disabilities Assistance and Bill of Rights
Act of 2000.’’
(b) The Protection and Advocacy for
Voting Access (PAVA) program under
the Help America Vote Act of 2002.
Specifically, 42 U.S.C. 15461(a) states
that the Secretary of Health and Human
Services ‘‘shall pay the protection and
advocacy system (as defined in section
15002 of this title) of each state . . . .’’
(c) The Protection and Advocacy for
Traumatic Brain Injury (PATBI)
program. Specifically, 42 U.S.C. 300d–
53(m) defines a ‘‘protection and
advocacy system’’ as a ‘‘protection and
advocacy system established under part
C of the Developmental Disabilities
Assistance and Bill of Rights Act. . . .’’
Such programs either require the
existence of a P&A under the DD Act or
define the P&A with reference to such
Act. Therefore, a final decision that the
Commonwealth of Puerto Rico does not
have a system in effect to protect and
advocate the rights of individuals with
developmental disabilities because OPPI
does not meet the statutory and
regulatory requirements to serve as a
P&A may also result in suspension or
termination of grant funding under
these programs based on ineligibility.
Federal programs outside HHS (such
as the Protection and Advocacy for
Individual Rights (PAIR) program under
section 509 of the Rehabilitation Act of
1973, as amended (29 U.S.C. 794e)) also
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refer to the DD Act. However, this
Notice does not address the effect of a
final decision in this case on those
programs.
Date, Time and Place Of Hearing:
Pursuant to 45 CFR 1386.84, the
Administrator, ACL, modifies the
requirements for the notice of hearing in
section 1386.90 as follows, having
determined that this modification will
serve justice and will not unduly
prejudice any party.
Rather than setting an exact time and
a specific calendar date for the hearing,
this Notice announces that the hearing
will commence 45 days from the date
this notice is published in the Federal
Register (or the first federal workday
thereafter, if the 45th day falls on a
federal non-workday) at a time to be
determined by the Presiding Officer. If
the Presiding Officer reschedules the
hearing pursuant to 45 CFR
1386.101(a)(1), the Presiding Officer
will notify all parties and amici curiae.
The hearing is expected to be
conducted using videoconference. A
non-federal party (including a nonfederal party under section 1396.94(a))
that believes an in-person hearing is
necessary because it is incapable of
reasonably presenting its case by
videoconference must submit a
statement to that effect with supporting
reasons no later than the date specified
above for filing a petition to participate
as a party. If the Presiding Officer
determines that an in-person hearing is
warranted, the Presiding Officer will
notify the parties of the hearing location
after consulting with the parties.
Otherwise, the Departmental Appeals
Board will arrange for appropriate
videoconference facilities for the nonfederal parties in Puerto Rico. Because
it is based in Washington, DC, AIDD
will participate in person, rather than by
videoconference. A party may also
request that an individual witness’s
testimony be taken by telephone if it is
not feasible for the witness to appear by
videoconference or in person.
The Presiding Officer will schedule a
pre-hearing conference after ruling on
any petitions to participate as a party
pursuant to section 1386.94(b)(2). The
pre-hearing conference will be held by
teleconference or by videoconference.
Filing and Service Requirements:
Pursuant to 45 CFR 1386.84, the
Administrator, ACL, modifies the
requirements for filing and service of
papers in section 1386.85 as follows,
having determined that this
modification will serve justice and will
not unduly prejudice any party.
Parties as of right under section
1386.94(a) are required to use the
Departmental Appeals Board’s
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electronic filing system (DAB E-File) for
all submissions. Instructions for using
DAB E-File are at https://dab.efile.hhs.
gov/appeals/Board/Appellate_Div_
instructions. Any other party, as well as
any amicus curiae, must file its petition
to participate by paper and must use
DAB E-File for all submissions that are
filed after its petition to participate has
been granted unless the party or amicus
files with its petition an explanation of
why it is unable to file submissions
electronically and the Presiding Officer
permits the party or amicus to file paper
submissions.
A submission will be deemed to have
been filed with the Presiding Officer on
a given day if it is uploaded to DAB EFile on or before 11:59 p.m. eastern time
of that day. A submission filed by paper
will be deemed to have been filed with
the Presiding Officer on the postmark
date, the date sent by registered or
certified mail, or the date deposited
with a commercial delivery service. A
party using DAB E-File must serve a
paper copy of its submissions on any
party or amicus curiae permitted by the
Presiding Officer to file submissions by
paper.
All submissions should be addressed
to Leslie A. Sussan, Presiding Officer.
The mailing address for paper
submissions to the Presiding Officer is
Departmental Appeals Board, Appellate
Division, Cohen Building, Room G–644,
MS6127, 330 Independence Ave. SW.,
Washington, DC 20201.
In order to facilitate compliance with
section 1386.82 (providing that all
documents filed are subject to public
inspection), parties and amici curiae
should redact all briefs, exhibits, and
other written submissions in order to
avoid the disclosure of any personally
identifiable information (PII) and other
information the disclosure of which
might violate the Health Insurance
Portability and Accountability Act
(HIPAA), the Privacy Act of 1974, or
State or other privacy or confidentiality
requirements.
Discovery Procedures: Pursuant to 45
CFR 1386.84, the Administrator, ACL,
modifies the provisions for discovery in
section 1386.103 as follows, having
determined that this modification will
serve justice and will not unduly
prejudice any party, as it conforms to
the discovery procedures already used
in other HHS administrative
proceedings.
AIDD and OPPI, as the parties named
in the notice issued under 45 CFR
1386.90, have the right to conduct
discovery, but the Presiding Officer will
not necessarily follow the Federal Rules
of Civil Procedure, which do not by
their own terms apply to administrative
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proceedings. Before filing a discovery
motion, a party should seek voluntary
production from the other party. Any
motion should describe specifically the
information sought and state how this
information is relevant and necessary to
the party’s case. The Presiding Officer
will order production of specific items
of information if the Presiding Officer
determines that the party needs that
information to address a dispositive
issue in the case. Neither interrogatories
nor depositions will be permitted unless
the Presiding Officer determines that
these are the only means to adequately
develop the record on a dispositive
issue.
Issues To Be Considered at the
Hearing: The issues to be considered at
the hearing are:
• Whether the Commonwealth of
Puerto Rico has in effect a system to
protect and advocate the rights of
individuals with developmental
disabilities that meets the definition in
section 102 of the DD Act (42 U.S.C.
15002) and that complies with sections
143(a) and 144 of such Act (42 U.S.C.
15043(a) and 15044), as well as
regulations at 45 CFR part 1386, subpart
B. It is the position of AIDD that OPPI
has failed to demonstrate that OPPI, as
the Commonwealth’s designated P&A
system, has sufficient operations,
independence, staff, and expertise to
exercise the authorities necessary and
required under the DD Act to protect the
legal and human rights of people with
developmental disabilities. The
following sub-issues are considered:
Æ Whether OPPI exercises the
authorities of the P&A as required by
sections 143(a)(2)(A) and (B) 1 of the DD
Act and 45 CFR 1386.21(a)&(c). OPPI
has failed to demonstrate that the P&A
is pursuing legal, administrative, and
other appropriate remedies or
approaches, such as individual legal
advocacy, individual case
representation, and systemic litigation,
to ensure the protection of, and
advocacy for, the rights of individuals
with developmental disabilities. OPPI
documentation provides for an
administrative hearing process, but not
other litigation, legal action or advocacy
that would ensure the protection and
advocacy envisioned by the statute and
regulations. 45 CFR 1386.21(c) states
that a P&A system ‘‘shall not implement
1 Although 45 CFR 1386.21(a) cites to section 142
of the DD Act, section 143 of DD Act of 2000
superseded such section. Section 401 of the DD Act
of 2000 (Pub. L. 106–402) repealed the prior version
of the Developmental Disabilities Assistance and
Bill of Rights Act, codified at 42 U.S.C. 6000 et seq.
System requirements for the P&A previously
included in section 142 of the Act are now included
in section 143 of the Act (compare 42 U.S.C. 6042
(1999) with 42 U.S.C. 15043 (2014)).
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5557
a policy or practice restricting the
remedies which may be sought on
behalf of the individuals with
developmental disabilities or
compromising the authority of the . . .
P&A . . . system to pursue such
remedies through litigation, legal action
or other forms of advocacy.’’ Because
OPPI has a policy for only one type of
remedy (an administrative remedy) and
does not have policies regarding other
types of legal remedies, OPPI has not
provided sufficient assurances or
evidence that the P&A is not de facto
restricted from pursuing appropriate
legal remedies to ensure the protection
of, and advocacy for, the rights of
individuals with developmental
disabilities. OPPI also has failed to
demonstrate that the P&A is providing
information and referral services
consistent with the DD Act. OPPI has an
information and referral form to
document the nature of an individual’s
disability, but it has not provided any
other document, policy or evidence for
how it carries out information and
referral consistent with the
requirements in the DD Act. OPPI has
failed to demonstrate that the P&A is
conducting investigations of incidents
of abuse and neglect of individuals with
developmental disabilities.
Æ Whether OPPI, as a government
agency, exercises the authorities of the
P&A as required by sections
143(a)(2)(A), (B) and (G) of the DD Act
and 45 CFR 1386.21(a)&(c). OPPI does
not have sufficient independence from
the Governor for the P&A to adequately
pursue legal, administrative, and other
appropriate remedies or approaches to
ensure the protection of, and advocacy
for, the rights of individuals with
developmental disabilities. Specifically,
OPPI lacks the financial, structural, and
leadership independence necessary to
adequately carry out the requirements of
a P&A system. With respect to financial
independence, OPPI is a government
agency and subject to the budgeting
priorities and processes of other
government agencies. OPPI has
repeatedly informed AIDD that it does
not have access to PADD funds to hire
new attorneys or to travel to receive
training related to the PADD grant. With
respect to structural independence, as a
government agency, the P&A must
follow certain requirements that
interfere with its ability to carry out the
functions of the DD Act, such as
maintaining a minimum amount of
administrative staff. Limits on financial
and structural independence also result
in OPPI not maintaining necessary staff.
Currently, only two attorneys are
employed by OPPI, and such attorneys
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serve at the pleasure of the Governor; as
state-funded employees, they are at risk
of losing their positions, thus
implicating the ability to truly
investigate and bring cases against Staterun institutions. With respect to
independent leadership, both the OPPI
Ombudsman, who is the Executive
Director of the P&A, and the Advisory
Council are appointed by the Governor,
and the Ombudsman can be removed by
the Governor. As such, OPPI fails to
operate free of influence from the
Governor. Section 143(a)(2)(G) requires
that the P&A be independent of any
agency that provides treatment, services,
or habilitation to individuals with
developmental disabilities. Act 78,
Article 6 requires that the Advisory
Council have members representing
service-providing entities making it
unclear whether this supports P&A
independence as required in the DD
Act.
Æ Whether OPPI maintains sufficient
numbers and types of staff (qualified by
training and experience) to carry out the
P&A system’s functions, as required by
section 143(a)(2)(K) of the DD Act and
45 CFR 1386.21(e), and is free from any
State policies which prevent the P&A
from carrying out its authorities and
other mandates under the Act,
including whether the P&A is exempt
from hiring freezes, reductions in force,
prohibitions on travel, or other policies
to the staff of the system, to the extent
that such policies would impact the
staff or functions of the system funded
with Federal funds or would prevent the
system from carrying out the functions
of the system, as required by section
143(a)(2)(K) of the DD Act and 45 CFR
1386.21(d). OPPI has only two attorneys
on its staff of more than 70 employees.
Neither attorney is authorized to
practice before the Federal courts in the
Commonwealth. This is a barrier to the
P&A being able to preserve and exercise
its authority to pursue legal,
administrative, and other appropriate
remedies or approaches authorized
under the DD act, as cases invoking the
authority of a Federal statute would be
brought in Federal court. Further, two
attorneys is an insufficient number for
a P&A to preserve and exercise its
authority to pursue legal,
administrative, and other appropriate
remedies or approaches. The P&A has
an administrative staff of over 50
people; however, it is unclear what role
and activities this staff is performing
related to the PADD grant. All P&A staff
are subjected to state hiring practices,
including hiring freezes, which prevents
the P&A from obtaining appropriate
staffing to carry out its mandates, and in
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violation of the above-cited regulations
(45 CFR 1386.21(d) and (e)). The P&A
lost advocate positions under the reorganization plan implemented in 2012
and was not able to replace those
positions. OPPI has repeatedly informed
AIDD that it does not have access to
PADD funds to hire new attorneys or to
travel to receive training related to the
PADD grant.
Æ Whether the individuals served by
the P&A are individuals with
developmental disabilities as defined in
section 102(8) and whether the P&A
takes action with regard to goals and
priorities, developed through data
driven strategic planning, for the
system’s activities as required by section
143(a)(1) and (a)(2)(C) and (D) of the DD
Act and in keeping with 45 CFR
1386.21(c) and 45 CFR 1386.23. OPPI
has a form to determine eligibility for
the PADD program; however, the 2012
AIDD Monitoring and Technical
Assistance Review System (MTARS)
report states that OPPI had a poor
understanding of the difference between
developmental disabilities and other
disabilities and seemed unclear about
which clients of the P&A qualify for
PADD funding. Therefore, this form
does not provide adequate assurances
that the people served with PADD
funding are people with developmental
disabilities. Furthermore, this form does
not include information about whether
the individual’s issues fall within the
P&A’s priorities. The 2012 MTARS
report states: ‘‘OPPI receives all
complaints that include people with
disabilities, regardless of the relativity
of the complaint. Based on the limited
resources available, OPPI is unable to
handle every meritorious complaint.
Therefore, OPPI needs to clarify the
organizational structure and framework,
then redevelop and apply the Goals and
Priorities to determine which cases they
may take, and which to refer out.’’ OPPI
has not presented evidence that it has a
statement of goals and priorities (SGP)
unique to the PADD program or that
anticipates priorities for selecting
specific cases or determining an
individual advocacy caseload, systemic
advocacy work and training activities,
and outcomes it wishes to accomplish.
OPPI submitted a Fiscal Year 2014 SGP
to AIDD. However, the AIDD review of
the SGP found it to be inadequate, as it
was not based on any public comment,
as required under the DD Act, and its
goals lacked the specificity necessary to
provide meaningful direction for the use
of PADD funds and PADD case
selection. As a result, AIDD did not
approve the SGP. OPPI took minimal
action to correct the SGP by submitting
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commentary on its goal setting process,
but it did not change the goals, or
provide record of public comment.
AIDD determined OPPI’s minimal
action was not sufficient to address the
deficiencies. Failure to have an
adequate SGP in place to guide the P&A
activities means that OPPI is likely
failing to meet the necessary priorities
and mandates of the DD Act.
Æ Whether the P&A exercises the
authority to access all records and
individuals with developmental
disabilities as required by Section
143(a)(2)(H–J) of the DD Act and 45 CFR
1386.22. The 2012 MTARS identified
that OPPI has the authority to access
and conduct on-site monitoring visits of
any individual with a developmental
disability in Puerto Rico where services
are provided. However, OPPI staff is
generally unaware of their authority to
access residential facilities and
community settings. Therefore OPPI did
not exercise this authority. Without
fully exercising the P&A access
authority, OPPI cannot fulfill its
statutory mandate to protect the legal
and human rights of individuals with
developmental disabilities, in
accordance with the purposes of the DD
Act (section 101(b)(2) of the DD Act).
The P&A is limited in its ability to carry
out the legal, administrative, and other
appropriate remedies in accordance
with sections 143(a)(1) and (a)(2)(A) of
the DD Act, if it does not demonstrate
that it accesses records and/or
individuals in accordance with sections
143(a)(2)(H)–(J) and 45 CFR 1386.22.
Æ Whether the P&A meets the
requirements in Section 144(a)(5) that
the majority of the members of an
advisory council shall be individuals
with disabilities, including individuals
with developmental disabilities who are
eligible for, have received or are
receiving services through the system; or
parents, family members, guardians,
advocates, or authorized representatives
of such individuals. Act 78, Article 6
requires that the Advisory Council have
9 members: 1 person with a disability;
1 parent of a person with a disability;
1 legal advisor with experience in the
field of disability rights; 1 vocational
rehabilitation professional; 1 special
education professional; 1 healthcare
professional; and 2 people committed to
fulfilling the principles outlined in the
law creating OPPI. This does not
guarantee that the Advisory Council
meets the majority requirements in the
DD Act.
Æ Whether the P&A is conducting
PADD activities since they have not
utilized FY2014 funds. The PADD grant
to OPPI is classified as high risk with
restrictions on the funds. Payment is
E:\FR\FM\02FEN1.SGM
02FEN1
Federal Register / Vol. 80, No. 21 / Monday, February 2, 2015 / Notices
made to OPPI on a reimbursement basis.
OPPI has not submitted a request for
reimbursement under the FY 2014
PADD grant award leaving the entire
amount of the award unspent. It is
unclear, then, how OPPI is exercising
the P&A authorities and conducting
P&A activities without utilizing the
federal financial assistance.
Dated: January 27, 2015.
Kathy Greenlee,
Administrator and Assistant Secretary for
Aging.
[FR Doc. 2015–01857 Filed 1–30–15; 8:45 am]
BILLING CODE 4154–01–P
DEPARTMENT OF HEALTH AND
HUMAN SERVICES
Food and Drug Administration
[Docket No. FDA–2014–N–1497]
Toxicological Principles for the Safety
Assessment of Food Ingredients;
Public Meeting on Updates and Safety
and Risk Assessment Considerations;
Extension of Comment Period
AGENCY:
Food and Drug Administration,
HHS.
Notification of public meeting;
request for comments; extension of
comment period.
ACTION:
The Food and Drug
Administration (FDA or we) is
extending the comment period for the
notification of public meeting and
request for comments that appeared in
the Federal Register of October 30,
2014. The notification requested
comments on certain topics related to
our guidance titled ‘‘Toxicological
Principles for the Safety Assessment of
Food Ingredients,’’ known less formally
as the ‘‘Redbook’’. We are taking this
action in response to requests for an
extension to allow interested persons
additional time to submit comments.
DATES: FDA is extending the comment
period on the notification of public
meeting and request for comments
published October 30, 2014 (79 FR
64603). Submit either electronic or
written comments by May 11, 2015.
ADDRESSES: You may submit comments
by any of the following methods:
mstockstill on DSK4VPTVN1PROD with NOTICES
SUMMARY:
Electronic Submissions
Submit electronic comments in the
following way:
• Federal eRulemaking Portal: https://
www.regulations.gov. Follow the
instructions for submitting comments.
Written Submissions
Submit written submissions in the
following ways:
VerDate Sep<11>2014
19:24 Jan 30, 2015
Jkt 235001
• Mail/Hand delivery/Courier (for
paper submissions): Division of Dockets
Management (HFA–305), Food and Drug
Administration, 5630 Fishers Lane, Rm.
1061, Rockville, MD 20852.
Instructions: All submissions received
must include the Docket No. (FDA–
2014–N–1497) for this rulemaking. All
comments received may be posted
without change to https://
www.regulations.gov, including any
personal information provided. For
additional information on submitting
comments, see the ‘‘Request for
Comments’’ heading of the
SUPPLEMENTARY INFORMATION section of
this document.
Docket: For access to the docket to
read background documents or
comments received, go to https://
www.regulations.gov and insert the
docket number, found in brackets in the
heading of this document, into the
‘‘Search’’ box and follow the prompts
and/or go to the Division of Dockets
Management, Food and Drug
Administration, 5630 Fishers Lane, Rm.
1061, Rockville, MD 20852.
FOR FURTHER INFORMATION CONTACT:
Jeremiah Fasano, Center for Food Safety
and Applied Nutrition (HFS–255), Food
and Drug Administration, 5100 Paint
Branch Pkwy., College Park, MD 20740,
240–402–1173, jeremiah.fasano@
fda.hhs.gov.
SUPPLEMENTARY INFORMATION:
I. Background
In the Federal Register of October 30,
2014 (79 FR 64603), we published a
notification of public meeting and
requested comments on certain topics
related to the Redbook. The Redbook
provides guidance to industry and other
stakeholders (e.g., academia and other
regulatory groups) regarding the
information used by FDA’s Center for
Food Safety and Applied Nutrition to
evaluate the safety of food additives and
color additives. The Redbook is
intended to help interested parties
understand FDA’s expectations
regarding:
• Determining the human exposure
that will occur from the use of the
ingredient in foods;
• Determining which toxicity studies
are appropriate;
• Designing, conducting, and
reporting the results of toxicity studies;
and
• Submitting the information to FDA
as part of a safety assessment.
Comments on the Redbook will
inform our future efforts on what should
be included, changed, or even excluded
from the updated Redbook. We are
interested in expanding the scope of the
PO 00000
Frm 00058
Fmt 4703
Sfmt 4703
5559
Redbook to emphasize the principles of
safety and risk assessment that are
shared across different regulatory
contexts for foods and cosmetics, while
still providing specific guidance for
applying these principles in particular
contexts such as the requirements for
premarket safety submissions or for risk
assessments conducted on foods and
cosmetics already on the market.
We have received a request for a 90day extension of the comment period for
the notification of public meeting and
request for comments. The request
conveyed-concern that the current 90day comment period (which would
otherwise expire on February 9, 2015)
does not allow sufficient time to
develop meaningful or thoughtful
responses to the notification of public
meeting and request for comments.
We have considered the request and
are extending the comment period for
90 days, until May 10, 2015. We believe
that a 90-day extension allows adequate
time for interested persons to submit
comments without significantly
delaying further action on these
important issues.
II. Request for Comments
Interested persons may submit either
electronic comments regarding this
document to https://www.regulations.gov
or written comments to the Division of
Dockets Management (see ADDRESSES). It
is only necessary to send one set of
comments. Identify comments with the
docket number found in brackets in the
heading of this document. Received
comments may be seen in the Division
of Dockets Management between 9 a.m.
and 4 p.m., Monday through Friday, and
will be posted to the docket at https://
www.regulations.gov.
Dated: January 27, 2015.
Leslie Kux,
Associate Commissioner for Policy.
[FR Doc. 2015–01858 Filed 1–30–15; 8:45 am]
BILLING CODE 4164–01–P
DEPARTMENT OF HEALTH AND
HUMAN SERVICES
Food and Drug Administration
[Docket No. FDA–2014–N–2031]
For Nominations on the Food Advisory
Committee; Extension of Closing Date
AGENCY:
Food and Drug Administration,
HHS.
ACTION:
Notice; extension of closing
date.
The Food and Drug
Administration (FDA) is extending the
closing date for the notice that appeared
SUMMARY:
E:\FR\FM\02FEN1.SGM
02FEN1
Agencies
[Federal Register Volume 80, Number 21 (Monday, February 2, 2015)]
[Notices]
[Pages 5555-5559]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2015-01857]
-----------------------------------------------------------------------
DEPARTMENT OF HEALTH AND HUMAN SERVICES
Administration for Community Living
Termination of the Commonwealth of Puerto Rico's Protection and
Advocacy for Persons With Developmental Disabilities Award
AGENCY: Administration for Community Living, HHS.
ACTION: Notice of Hearing: Termination of PADD funding. Action to
Terminate the Commonwealth of Puerto Rico's Protection and Advocacy for
Persons with Developmental Disabilities (PADD) Award.
-----------------------------------------------------------------------
SUMMARY: Pursuant to regulations at 45 CFR part 1386, subpart D, this
notice announces an administrative hearing regarding termination of
Federal funding (that is, ``the allotment'') for the Protection and
Advocacy for Persons with Developmental Disabilities (PADD) Award to
the designated Protection and Advocacy agency in the Commonwealth of
Puerto Rico: Oficina del Procurador de las Personas con Impedimentos
(OPPI) (Ombudsman for Persons with Disabilities). This notice includes
the following information: Who will preside at the hearing, the
organizations or entities that are parties to the hearing without
making a specific request to participate, the due dates for those who
are not parties as of right to file a petition to participate as a
party or as an amicus curiae, the date and place of the hearing, how
certain procedural provisions in the applicable regulations have been
modified, and a description of the issues to be considered at the
hearing.
FOR FURTHER INFORMATION CONTACT: Carolyn Reines-Graubard, Director,
Appellate Division, Departmental Appeals Board, Cohen Building, Rm. G-
644, MS 6127, 330 Independence Ave. SW., Washington, DC 20201, 202-565-
0116.
Background: The Developmental Disabilities Assistance and Bill of
Rights Act of 2000 (DD Act) (codified at 42 U.S.C. 15001 et seq.)
provides states and territories with federal money for the purpose of
assuring that ``individuals with developmental disabilities and their
families participate in the design of and have access to needed
community services, individualized supports, and other forms of
assistance that promote self-determination, independence, productivity,
and integration and inclusion in all facets of community life, through
culturally competent programs authorized'' by the Act. DD Act Sec.
101(b) (42 U.S.C. 15001(b)). While a number of programs are authorized
under the DD Act, the relevant program for this proceeding is the
Protection and Advocacy (P&A) system, described in Subtitle C of Title
I of the DD Act and, relatedly, the State Council on Developmental
Disabilities (SCDD), described in Subtitle B of such Title.
P&A systems are to ``protect the legal and human rights of
individuals with developmental disabilities.'' DD Act Sec. 101(b)(2)
(42 U.S.C. 15001(b)(2)). State Councils are to engage in ``advocacy,
capacity building, and systemic change activities that are consistent
with the purpose and policies of the Act,'' DD Act Sec. 101(b)(1)(A)
(42 U.S.C. 15001(b)(1)(A)), and that ``contribute[] to a coordinated,
consumer- and family-centered, consumer- and family-directed,
comprehensive system that includes needed community services,
individualized supports, and other forms of assistance that promote
self-determination for individuals with developmental disabilities and
their families.'' DD Act Sec. 101(b)(1)(B) (42 U.S.C. 15001(b)(1)(B)).
As a condition of funding the SCDD, the State must establish a P&A
system to ``to protect and advocate the rights of individuals with
developmental disabilities.'' DD Act Sec. 143(a)(1) (42 U.S.C.
15043(a)(1)).
Under the DD Act, a P&A system must have certain powers. Such
powers include, but are not limited to, the authority to ``pursue
legal, administrative, and other appropriate remedies or approaches to
ensure the protection of, and advocacy for, the rights of such
individuals within the State who are or who may be eligible for
treatment, services, or habilitation, or who are being considered for a
change in living arrangements, with particular attention to members of
ethnic and racial minority groups,'' as well as to ``investigate
incidents of abuse and neglect . . . if the incidents are reported to
the system or if there is probable cause to believe that the incidents
occurred.'' DD Act Sec. 143(a)(2)(A)(i) and (B) (42 U.S.C.
15043(a)(2)(A)(i) and (B)).
Pertinent regulations implementing the DD Act are contained in 45
CFR parts 1385 and 1386. Part 1385 includes general requirements
applicable to most programs and projects authorized under the DD Act,
including both the SCDDs and P&A systems. Part 1386 is specific to
SCDDs and P&A systems. Subpart A of Part 1386 contains regulations
applicable to both programs; Subpart B
[[Page 5556]]
is specific to P&A systems; Subpart C is specific to SCDDs, and Subpart
D contains the practices and procedures for administrative hearings,
such as the hearing in this proceeding.
Designation of Presiding Officer: Section 1386.100(a) of 45 CFR
states that the ``presiding officer at a hearing must be the Assistant
Secretary''--defined in section 1386.80 as the Assistant Secretary for
Children and Families--``or someone designated by the Assistant
Secretary.'' In 2013, the Assistant Secretary for Children and Families
delegated his authorities under the DD Act to the Administrator,
Administration for Community Living (ACL). 78 FR 16510 (Mar. 15, 2013).
The Administrator, ACL, has designated Leslie A. Sussan, a member of
the Departmental Appeals Board (DAB), as the Presiding Officer at the
hearing. The Presiding Officer will certify the entire record,
including recommended findings and a proposed decision, to the
Administrator, ACL, who will issue a decision in accordance with 45 CFR
1386.111.
Requests for Participation: Pursuant to 45 CFR 1386.94(a), the
Administration for Intellectual and Developmental Disabilities (AIDD)
within ACL; OPPI; the Puerto Rico Developmental Disabilities Council
(PRDDC); and the Office of the Governor, on behalf of the Commonwealth
of Puerto Rico, are parties to the hearing without making a specific
request to participate. Any individual or group not a party as of right
under section 1386.94(a) that wishes to participate as a party must
file a petition containing the information required by section
1386.94(b)(2)(i)-(iv) with the Presiding Officer no later than 15 days
after the date of publication of this notice in the Federal Register.
Any interested person or organization that wishes to participate as
an amicus curiae must file a petition that contains the information
required by section 1386.94(c)(1)(i)-(iii). The petition must also
state whether the interested person or organization will submit a
written statement of position prior to the hearing and whether it
wishes to present a brief oral statement at the hearing and/or to
submit a brief or written statement at such time as the parties submit
briefs. The petition must be filed with the Presiding Officer at least
15 days before the scheduled hearing date below in order to facilitate
hearing arrangements.
If the deadline for filing a petition falls on a federal non-
workday (a Saturday, Sunday, legal holiday, or a day which by statute
or Executive Order is declared to be a non-workday for federal
employees), the submission may be filed on the next federal workday.
Effect of a Final Determination: The decision of the Presiding
Officer will be reviewed by the Administrator of ACL, in accordance
with 45 CFR 1386.111. If the Administrator reaches a final
determination that OPPI does not comply with Federal requirements, and
determines that Federal funding (i.e., allotments) will not be made
pursuant to such decision, thus terminating the PADD grant, such
decision will also terminate funding for the Commonwealth's SCDD in
addition to the P&A. Pursuant to section 143(a) of the DD Act (42
U.S.C. 15043(a)), as well as 45 CFR 1386.21(a), in order for a State to
receive an allotment for its SCDD, the State must have in effect a P&A
system meeting Federal requirements.
Other HHS programs providing grants to P&A organizations
incorporate the DD Act. These programs are:
(a) The Protection and Advocacy for Individuals with Mental Illness
(PAIMI) program. Specifically, 42 U.S.C. 10802(2) defines an eligible
system as a system ``established in a State to protect and advocate the
rights of persons with developmental disabilities under subtitle C of
the Developmental Disabilities Assistance and Bill of Rights Act of
2000.''
(b) The Protection and Advocacy for Voting Access (PAVA) program
under the Help America Vote Act of 2002. Specifically, 42 U.S.C.
15461(a) states that the Secretary of Health and Human Services ``shall
pay the protection and advocacy system (as defined in section 15002 of
this title) of each state . . . .''
(c) The Protection and Advocacy for Traumatic Brain Injury (PATBI)
program. Specifically, 42 U.S.C. 300d-53(m) defines a ``protection and
advocacy system'' as a ``protection and advocacy system established
under part C of the Developmental Disabilities Assistance and Bill of
Rights Act. . . .''
Such programs either require the existence of a P&A under the DD
Act or define the P&A with reference to such Act. Therefore, a final
decision that the Commonwealth of Puerto Rico does not have a system in
effect to protect and advocate the rights of individuals with
developmental disabilities because OPPI does not meet the statutory and
regulatory requirements to serve as a P&A may also result in suspension
or termination of grant funding under these programs based on
ineligibility.
Federal programs outside HHS (such as the Protection and Advocacy
for Individual Rights (PAIR) program under section 509 of the
Rehabilitation Act of 1973, as amended (29 U.S.C. 794e)) also refer to
the DD Act. However, this Notice does not address the effect of a final
decision in this case on those programs.
Date, Time and Place Of Hearing: Pursuant to 45 CFR 1386.84, the
Administrator, ACL, modifies the requirements for the notice of hearing
in section 1386.90 as follows, having determined that this modification
will serve justice and will not unduly prejudice any party.
Rather than setting an exact time and a specific calendar date for
the hearing, this Notice announces that the hearing will commence 45
days from the date this notice is published in the Federal Register (or
the first federal workday thereafter, if the 45th day falls on a
federal non-workday) at a time to be determined by the Presiding
Officer. If the Presiding Officer reschedules the hearing pursuant to
45 CFR 1386.101(a)(1), the Presiding Officer will notify all parties
and amici curiae.
The hearing is expected to be conducted using videoconference. A
non-federal party (including a non-federal party under section
1396.94(a)) that believes an in-person hearing is necessary because it
is incapable of reasonably presenting its case by videoconference must
submit a statement to that effect with supporting reasons no later than
the date specified above for filing a petition to participate as a
party. If the Presiding Officer determines that an in-person hearing is
warranted, the Presiding Officer will notify the parties of the hearing
location after consulting with the parties. Otherwise, the Departmental
Appeals Board will arrange for appropriate videoconference facilities
for the non-federal parties in Puerto Rico. Because it is based in
Washington, DC, AIDD will participate in person, rather than by
videoconference. A party may also request that an individual witness's
testimony be taken by telephone if it is not feasible for the witness
to appear by videoconference or in person.
The Presiding Officer will schedule a pre-hearing conference after
ruling on any petitions to participate as a party pursuant to section
1386.94(b)(2). The pre-hearing conference will be held by
teleconference or by videoconference.
Filing and Service Requirements: Pursuant to 45 CFR 1386.84, the
Administrator, ACL, modifies the requirements for filing and service of
papers in section 1386.85 as follows, having determined that this
modification will serve justice and will not unduly prejudice any
party.
Parties as of right under section 1386.94(a) are required to use
the Departmental Appeals Board's
[[Page 5557]]
electronic filing system (DAB E-File) for all submissions. Instructions
for using DAB E-File are at https://dab.efile.hhs.gov/appeals/Board/Appellate_Div_instructions. Any other party, as well as any amicus
curiae, must file its petition to participate by paper and must use DAB
E-File for all submissions that are filed after its petition to
participate has been granted unless the party or amicus files with its
petition an explanation of why it is unable to file submissions
electronically and the Presiding Officer permits the party or amicus to
file paper submissions.
A submission will be deemed to have been filed with the Presiding
Officer on a given day if it is uploaded to DAB E-File on or before
11:59 p.m. eastern time of that day. A submission filed by paper will
be deemed to have been filed with the Presiding Officer on the postmark
date, the date sent by registered or certified mail, or the date
deposited with a commercial delivery service. A party using DAB E-File
must serve a paper copy of its submissions on any party or amicus
curiae permitted by the Presiding Officer to file submissions by paper.
All submissions should be addressed to Leslie A. Sussan, Presiding
Officer. The mailing address for paper submissions to the Presiding
Officer is Departmental Appeals Board, Appellate Division, Cohen
Building, Room G-644, MS6127, 330 Independence Ave. SW., Washington, DC
20201.
In order to facilitate compliance with section 1386.82 (providing
that all documents filed are subject to public inspection), parties and
amici curiae should redact all briefs, exhibits, and other written
submissions in order to avoid the disclosure of any personally
identifiable information (PII) and other information the disclosure of
which might violate the Health Insurance Portability and Accountability
Act (HIPAA), the Privacy Act of 1974, or State or other privacy or
confidentiality requirements.
Discovery Procedures: Pursuant to 45 CFR 1386.84, the
Administrator, ACL, modifies the provisions for discovery in section
1386.103 as follows, having determined that this modification will
serve justice and will not unduly prejudice any party, as it conforms
to the discovery procedures already used in other HHS administrative
proceedings.
AIDD and OPPI, as the parties named in the notice issued under 45
CFR 1386.90, have the right to conduct discovery, but the Presiding
Officer will not necessarily follow the Federal Rules of Civil
Procedure, which do not by their own terms apply to administrative
proceedings. Before filing a discovery motion, a party should seek
voluntary production from the other party. Any motion should describe
specifically the information sought and state how this information is
relevant and necessary to the party's case. The Presiding Officer will
order production of specific items of information if the Presiding
Officer determines that the party needs that information to address a
dispositive issue in the case. Neither interrogatories nor depositions
will be permitted unless the Presiding Officer determines that these
are the only means to adequately develop the record on a dispositive
issue.
Issues To Be Considered at the Hearing: The issues to be considered
at the hearing are:
Whether the Commonwealth of Puerto Rico has in effect a
system to protect and advocate the rights of individuals with
developmental disabilities that meets the definition in section 102 of
the DD Act (42 U.S.C. 15002) and that complies with sections 143(a) and
144 of such Act (42 U.S.C. 15043(a) and 15044), as well as regulations
at 45 CFR part 1386, subpart B. It is the position of AIDD that OPPI
has failed to demonstrate that OPPI, as the Commonwealth's designated
P&A system, has sufficient operations, independence, staff, and
expertise to exercise the authorities necessary and required under the
DD Act to protect the legal and human rights of people with
developmental disabilities. The following sub-issues are considered:
[cir] Whether OPPI exercises the authorities of the P&A as required
by sections 143(a)(2)(A) and (B) \1\ of the DD Act and 45 CFR
1386.21(a)&(c). OPPI has failed to demonstrate that the P&A is pursuing
legal, administrative, and other appropriate remedies or approaches,
such as individual legal advocacy, individual case representation, and
systemic litigation, to ensure the protection of, and advocacy for, the
rights of individuals with developmental disabilities. OPPI
documentation provides for an administrative hearing process, but not
other litigation, legal action or advocacy that would ensure the
protection and advocacy envisioned by the statute and regulations. 45
CFR 1386.21(c) states that a P&A system ``shall not implement a policy
or practice restricting the remedies which may be sought on behalf of
the individuals with developmental disabilities or compromising the
authority of the . . . P&A . . . system to pursue such remedies through
litigation, legal action or other forms of advocacy.'' Because OPPI has
a policy for only one type of remedy (an administrative remedy) and
does not have policies regarding other types of legal remedies, OPPI
has not provided sufficient assurances or evidence that the P&A is not
de facto restricted from pursuing appropriate legal remedies to ensure
the protection of, and advocacy for, the rights of individuals with
developmental disabilities. OPPI also has failed to demonstrate that
the P&A is providing information and referral services consistent with
the DD Act. OPPI has an information and referral form to document the
nature of an individual's disability, but it has not provided any other
document, policy or evidence for how it carries out information and
referral consistent with the requirements in the DD Act. OPPI has
failed to demonstrate that the P&A is conducting investigations of
incidents of abuse and neglect of individuals with developmental
disabilities.
---------------------------------------------------------------------------
\1\ Although 45 CFR 1386.21(a) cites to section 142 of the DD
Act, section 143 of DD Act of 2000 superseded such section. Section
401 of the DD Act of 2000 (Pub. L. 106-402) repealed the prior
version of the Developmental Disabilities Assistance and Bill of
Rights Act, codified at 42 U.S.C. 6000 et seq. System requirements
for the P&A previously included in section 142 of the Act are now
included in section 143 of the Act (compare 42 U.S.C. 6042 (1999)
with 42 U.S.C. 15043 (2014)).
---------------------------------------------------------------------------
[cir] Whether OPPI, as a government agency, exercises the
authorities of the P&A as required by sections 143(a)(2)(A), (B) and
(G) of the DD Act and 45 CFR 1386.21(a)&(c). OPPI does not have
sufficient independence from the Governor for the P&A to adequately
pursue legal, administrative, and other appropriate remedies or
approaches to ensure the protection of, and advocacy for, the rights of
individuals with developmental disabilities. Specifically, OPPI lacks
the financial, structural, and leadership independence necessary to
adequately carry out the requirements of a P&A system. With respect to
financial independence, OPPI is a government agency and subject to the
budgeting priorities and processes of other government agencies. OPPI
has repeatedly informed AIDD that it does not have access to PADD funds
to hire new attorneys or to travel to receive training related to the
PADD grant. With respect to structural independence, as a government
agency, the P&A must follow certain requirements that interfere with
its ability to carry out the functions of the DD Act, such as
maintaining a minimum amount of administrative staff. Limits on
financial and structural independence also result in OPPI not
maintaining necessary staff. Currently, only two attorneys are employed
by OPPI, and such attorneys
[[Page 5558]]
serve at the pleasure of the Governor; as state-funded employees, they
are at risk of losing their positions, thus implicating the ability to
truly investigate and bring cases against State-run institutions. With
respect to independent leadership, both the OPPI Ombudsman, who is the
Executive Director of the P&A, and the Advisory Council are appointed
by the Governor, and the Ombudsman can be removed by the Governor. As
such, OPPI fails to operate free of influence from the Governor.
Section 143(a)(2)(G) requires that the P&A be independent of any agency
that provides treatment, services, or habilitation to individuals with
developmental disabilities. Act 78, Article 6 requires that the
Advisory Council have members representing service-providing entities
making it unclear whether this supports P&A independence as required in
the DD Act.
[cir] Whether OPPI maintains sufficient numbers and types of staff
(qualified by training and experience) to carry out the P&A system's
functions, as required by section 143(a)(2)(K) of the DD Act and 45 CFR
1386.21(e), and is free from any State policies which prevent the P&A
from carrying out its authorities and other mandates under the Act,
including whether the P&A is exempt from hiring freezes, reductions in
force, prohibitions on travel, or other policies to the staff of the
system, to the extent that such policies would impact the staff or
functions of the system funded with Federal funds or would prevent the
system from carrying out the functions of the system, as required by
section 143(a)(2)(K) of the DD Act and 45 CFR 1386.21(d). OPPI has only
two attorneys on its staff of more than 70 employees. Neither attorney
is authorized to practice before the Federal courts in the
Commonwealth. This is a barrier to the P&A being able to preserve and
exercise its authority to pursue legal, administrative, and other
appropriate remedies or approaches authorized under the DD act, as
cases invoking the authority of a Federal statute would be brought in
Federal court. Further, two attorneys is an insufficient number for a
P&A to preserve and exercise its authority to pursue legal,
administrative, and other appropriate remedies or approaches. The P&A
has an administrative staff of over 50 people; however, it is unclear
what role and activities this staff is performing related to the PADD
grant. All P&A staff are subjected to state hiring practices, including
hiring freezes, which prevents the P&A from obtaining appropriate
staffing to carry out its mandates, and in violation of the above-cited
regulations (45 CFR 1386.21(d) and (e)). The P&A lost advocate
positions under the re-organization plan implemented in 2012 and was
not able to replace those positions. OPPI has repeatedly informed AIDD
that it does not have access to PADD funds to hire new attorneys or to
travel to receive training related to the PADD grant.
[cir] Whether the individuals served by the P&A are individuals
with developmental disabilities as defined in section 102(8) and
whether the P&A takes action with regard to goals and priorities,
developed through data driven strategic planning, for the system's
activities as required by section 143(a)(1) and (a)(2)(C) and (D) of
the DD Act and in keeping with 45 CFR 1386.21(c) and 45 CFR 1386.23.
OPPI has a form to determine eligibility for the PADD program; however,
the 2012 AIDD Monitoring and Technical Assistance Review System (MTARS)
report states that OPPI had a poor understanding of the difference
between developmental disabilities and other disabilities and seemed
unclear about which clients of the P&A qualify for PADD funding.
Therefore, this form does not provide adequate assurances that the
people served with PADD funding are people with developmental
disabilities. Furthermore, this form does not include information about
whether the individual's issues fall within the P&A's priorities. The
2012 MTARS report states: ``OPPI receives all complaints that include
people with disabilities, regardless of the relativity of the
complaint. Based on the limited resources available, OPPI is unable to
handle every meritorious complaint. Therefore, OPPI needs to clarify
the organizational structure and framework, then redevelop and apply
the Goals and Priorities to determine which cases they may take, and
which to refer out.'' OPPI has not presented evidence that it has a
statement of goals and priorities (SGP) unique to the PADD program or
that anticipates priorities for selecting specific cases or determining
an individual advocacy caseload, systemic advocacy work and training
activities, and outcomes it wishes to accomplish. OPPI submitted a
Fiscal Year 2014 SGP to AIDD. However, the AIDD review of the SGP found
it to be inadequate, as it was not based on any public comment, as
required under the DD Act, and its goals lacked the specificity
necessary to provide meaningful direction for the use of PADD funds and
PADD case selection. As a result, AIDD did not approve the SGP. OPPI
took minimal action to correct the SGP by submitting commentary on its
goal setting process, but it did not change the goals, or provide
record of public comment. AIDD determined OPPI's minimal action was not
sufficient to address the deficiencies. Failure to have an adequate SGP
in place to guide the P&A activities means that OPPI is likely failing
to meet the necessary priorities and mandates of the DD Act.
[cir] Whether the P&A exercises the authority to access all records
and individuals with developmental disabilities as required by Section
143(a)(2)(H-J) of the DD Act and 45 CFR 1386.22. The 2012 MTARS
identified that OPPI has the authority to access and conduct on-site
monitoring visits of any individual with a developmental disability in
Puerto Rico where services are provided. However, OPPI staff is
generally unaware of their authority to access residential facilities
and community settings. Therefore OPPI did not exercise this authority.
Without fully exercising the P&A access authority, OPPI cannot fulfill
its statutory mandate to protect the legal and human rights of
individuals with developmental disabilities, in accordance with the
purposes of the DD Act (section 101(b)(2) of the DD Act). The P&A is
limited in its ability to carry out the legal, administrative, and
other appropriate remedies in accordance with sections 143(a)(1) and
(a)(2)(A) of the DD Act, if it does not demonstrate that it accesses
records and/or individuals in accordance with sections 143(a)(2)(H)-(J)
and 45 CFR 1386.22.
[cir] Whether the P&A meets the requirements in Section 144(a)(5)
that the majority of the members of an advisory council shall be
individuals with disabilities, including individuals with developmental
disabilities who are eligible for, have received or are receiving
services through the system; or parents, family members, guardians,
advocates, or authorized representatives of such individuals. Act 78,
Article 6 requires that the Advisory Council have 9 members: 1 person
with a disability; 1 parent of a person with a disability; 1 legal
advisor with experience in the field of disability rights; 1 vocational
rehabilitation professional; 1 special education professional; 1
healthcare professional; and 2 people committed to fulfilling the
principles outlined in the law creating OPPI. This does not guarantee
that the Advisory Council meets the majority requirements in the DD
Act.
[cir] Whether the P&A is conducting PADD activities since they have
not utilized FY2014 funds. The PADD grant to OPPI is classified as high
risk with restrictions on the funds. Payment is
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made to OPPI on a reimbursement basis. OPPI has not submitted a request
for reimbursement under the FY 2014 PADD grant award leaving the entire
amount of the award unspent. It is unclear, then, how OPPI is
exercising the P&A authorities and conducting P&A activities without
utilizing the federal financial assistance.
Dated: January 27, 2015.
Kathy Greenlee,
Administrator and Assistant Secretary for Aging.
[FR Doc. 2015-01857 Filed 1-30-15; 8:45 am]
BILLING CODE 4154-01-P