[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
[[Page ii]]
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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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[[Page v]]
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
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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
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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
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To determine whether a Code volume has been amended since its
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EFFECTIVE AND EXPIRATION DATES
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OMB CONTROL NUMBERS
The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires
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
Provisions of the Code that are no longer in force and effect as of
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for 1949-1963, 1964-1972, 1973-1985, and 1986-2000.
``[RESERVED]'' TERMINOLOGY
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INCORPORATION BY REFERENCE
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This material, like any other properly issued regulation, has the force
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What is a proper incorporation by reference? The Director of the
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CFR INDEXES AND TABULAR GUIDES
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alphabetical list of agencies publishing in the CFR are also included in
this volume.
[[Page vii]]
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INQUIRIES
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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.
[[Page 1]]
TITLE 45--PUBLIC WELFARE
(This book contains part 1200 to end)
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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
[[Page 3]]
SUBTITLE B--Regulations Relating to Public Welfare (Continued)
[[Page 5]]
CHAPTER XII--CORPORATION FOR NATIONAL AND COMMUNITY SERVICE
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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]
[[Page 7]]
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
[[Page 74]]
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]
[[Page 75]]
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
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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.
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(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.
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(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
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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).
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(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.
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(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:
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(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.