[Federal Register Volume 60, Number 68 (Monday, April 10, 1995)]
[Notices]
[Pages 18137-18139]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-8648]



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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Substance Abuse and Mental Health Services Administration


Hearing Procedures for Certain Issues Related to the Substance 
Abuse Prevention and Treatment and the Community Mental Health Services 
Block Grant Programs

AGENCY: Substance Abuse and Mental Health Services Administration 
(SAMHSA), HHS.

ACTION: Notice.

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SUMMARY: SAMHSA administers two block grant programs: the Substance 
Abuse Prevention and Treatment (SAPT) Block Grant Program and the 
Community Mental Health Services (CMHS) Block Grant Program, both of 
which are authorized by Title XIX of the Public Health Service (PHS) 
Act. Section 1945(e) of the PHS Act provides a State the opportunity 
for a hearing on certain noncompliance issues relating to the block 
grants prior to the Secretary taking final action against the State. To 
the extent that the hearing procedures contained in 45 CFR part 96, 
subpart E, 42 CFR part 50, subpart D, or 45 CFR part 16 do not apply to 
the noncompliance issue raised, the guidelines established below for 
hearings will apply to assist in providing a prompt and orderly 
hearing. When these procedures are applicable, the State will be 
provided a copy of the procedures with the notice of noncompliance.
    These procedures are currently effective. However, we are inviting 
comments from the public on the procedures and such comments are to be 
sent to the information contact person identified immediately below 
within 60 days from the date of this publication. Comments received 
will be carefully considered and may cause the procedures to be 
revised.

FOR FURTHER INFORMATION CONTACT: Richard Kopanda, Acting Executive 
Officer, SAMHSA, 5600 Fishers Lane, Room 12-105, Rockville, MD 20857, 
Telephone No. (301) 443-3875.

Hearing Procedures

Sec. 1. Limitations on Issues Subject to Review During the Hearing

    The scope of review shall be limited to (a) the facts relevant to 
the noncompliance at issue, and (b) the necessary interpretations of 
those facts, any applicable regulations, and other relevant law. The 
legal validity of any regulations or statutes shall not be subject to 
review under these procedures. [[Page 18138]] 

Sec. 2. The Request for a Hearing and the Hearing Official's Response

    (a) The State must submit a written notice to the Substance Abuse 
and Mental Health Services Administration (SAMHSA) requesting a hearing 
within 15 days of the date of the notice of noncompliance (which will 
set forth the reasons for the finding of noncompliance and be 
accompanied by a copy of these hearing procedures), unless some other 
time period is agreed to by the parties. The written notice must be 
sent to (name and address of person identified in the letter to the 
State). The written notice requesting a hearing must include a copy of 
the notice of noncompliance and a brief statement of why the decision 
of noncompliance is wrong.
    (b) Within ten days after receiving the request for review, SAMHSA 
will send an acknowledgment, identify the hearing official and advise 
the State of the next steps.

Sec. 3. The Procedures for Development of the Hearing File and 
Submission of Written Argument

    The procedures for development and the submission of written 
argument are as follows:
    (a) State's documents and briefs. Within 30 days after receiving 
the acknowledgment of the request for a hearing, the State shall submit 
to the hearing official the following (with a copy of SAMHSA at the 
address listed in sec. 2):
    (1) A written statement, not to exceed 20 double-spaced pages, 
explaining why the Government's determination of noncompliance is 
wrong.
    (2) A review file containing the documents supporting the State's 
argument, tabbed and reasonably organized, and accompanied by an index 
identifying each document. Only essential documents should be submitted 
to the hearing official.
    (b) SAMHSA's Documents and Brief. Within 30 days after receiving 
the State's submission, SAMHSA shall submit to the hearing official the 
following (with a copy to the State):
    (1) A written statement, not exceeding 20 double-spaced pages in 
length, responding to the State's brief.
    (2) A review file containing documents supporting the Government's 
decision of noncompliance, tabbed and reasonably organized, and 
accompanied by an index identifying each document. Only essential 
documents should be submitted to the hearing official.
    (c) The State's Reply Brief. Within 15 days after receiving 
SAMHSA's submission, the State may submit a short reply not to exceed 
10 double-spaced pages (with a copy to SAMHSA at the address listed in 
sec. 2).

Sec. 4. Opportunity for Oral Presentation

    (a) Electing Oral Presentation. Either the Federal Government or 
the State may request the opportunity for an oral presentation by 
submitting such a request in writing to the hearing official on or 
before the date the State is to submit its reply brief under section 
3(c). The hearing official will grant the request if the official 
determines that a genuine and substantial issue of fact has been raised 
by the material submitted and that the consideration of the issue will 
benefit from an oral presentation. The hearing official may also upon 
his or her initiative request an oral presentation by the parties.
    (b) Preliminary Conference. The hearing official may hold a 
prehearing conference (usually a telephone conference call) to consider 
any of the following: Simplifying and clarifying issues; stipulations 
and admissions; limitations on evidence and witnesses that will be 
presented at the hearing; time allotted for each witness and the 
hearing altogether; scheduling the hearing; and any other matter that 
will assist in the review process. Normally, this conference will be 
conducted informally. The hearing official may, at his or her 
discretion, produce a written document summarizing the conference or 
transcribe the conference, either of which will be made a part of the 
record.
    (c) Time and Place of Oral Presentation. The hearing official will 
attempt to schedule the oral presentation, if granted, within 30 days 
of the date of the last reply brief. The oral presentation will be held 
at a time and place determined by the hearing official following 
consultation with the parties.
    (d) Conduct of the Oral Presentation.
    (1) General. The hearing official is responsible for conducting the 
oral presentation. The hearing official may be assisted by one or more 
of his or her employees or consultants in conducting the oral 
presentation and hearing the evidence. While the oral presentation will 
be kept as informal as possible, the hearing official may take all 
necessary steps to ensure an orderly proceeding.
    (2) Admission of Evidence. The formal rules of evidence do not 
apply and the hearing official will generally admit all testimonial 
evidence unless it is clearly irrelevant, immaterial, or unduly 
repetitious. Each party may make an opening and closing statement, may 
present witnesses as agreed upon in the prehearing conference or 
otherwise, and may question the opposing party's witnesses. Since the 
parties have ample opportunity to prepare the review file, a party may 
introduce additional documentation during the oral presentation only 
with the permission of the hearing official. The hearing official may 
question witnesses directly and take such other steps necessary to 
ensure an effective and efficient consideration of the evidence, 
including setting time limitations on direct and cross-examinations.
    (3) Transcripts. The hearing official may have the oral 
presentation transcribed and, if so transcribed, the transcript shall 
be made a part of the record. Either party may request a copy of the 
transcript and the requesting party shall be responsible for paying for 
its copy of the transcript.
    (e) Obstruction of Justice or Making of False Statements. 
Obstruction of justice or the making of false statements by a witness 
or any other person may be the basis for a criminal prosecution under 
18 U.S.C. 1505, 1001, or related statutes or regulations.
    (f) Post-hearing Procedures. At his or her discretion, the hearing 
official may require or permit the parties to submit post-hearing 
briefs or proposed findings and conclusions. Each party may submit 
comments on any major prejudicial errors in the transcript.

Sec. 5. Burden of Proof

    In all cases, the Government bears the burden of proving by a 
preponderance of the evidence that the State has not complied with the 
relevant provisions of the law. However, if a State is required to 
expend or otherwise account for money in a particular manner, the State 
shall have the burden of producing audible records to show how the 
money was spent or otherwise accounted for or there will be a 
presumption created that the State did not expend or otherwise account 
for the funds correctly.

Sec. 6. Ex Parte Communications

    Except for minor or routine administrative and procedural matters, 
a party shall not communicate with the hearing official or his or her 
staff on the matter without notice to the other party. All written 
communications to the hearing official shall simultaneously be 
submitted to the other party.

Sec. 7. Transmission of Written Communications and Calculation of 
Deadlines

    (a) Because of the importance of a timely review, all written 
communications are to be transmitted by facsimile or overnight express 
mail. [[Page 18139]] The date of transmission (for facsimile) or the 
day following mailing (for overnight mail) will be considered the date 
of receipt.
    (b) In counting days, include Saturdays, Sundays, and holidays. 
However, if a due date falls on a Saturday, Sunday, or Federal holiday, 
then the due date is the next Federal working day.

Sec. 8. Appointment of and Authority and Responsibilities of Hearing 
Official

    There shall only be one hearing official appointed to the case and 
that hearing official shall be appointed by the Administrator of 
SAMHSA. In addition to any other authority specified in these 
procedures, the hearing official shall have the authority to issue 
orders; examine witnesses; take all steps necessary for the conduct of 
an orderly hearing; rule on requests and motions; grant extensions of 
time for good reasons; dismiss for failure to meet deadlines or other 
requirements; order the parties to submit relevant information or 
witnesses; remand a case for further action by the respondent; waive or 
modify these procedures in a specific case, usually with notice to the 
parties; reconsider a decision where a party promptly alleges a clear 
error of fact or law; and to take any other action necessary to resolve 
disputes in accordance with the objectives of these procedures.

Sec. 9. Administrative Record

    The administrative record of review consists of the review file 
including the government's notice and the State's request for a 
hearing; other submissions by the parties; transcripts or other records 
of any meetings, conference calls, or oral presentation; evidence 
submitted at the oral presentation; and orders and other documents 
issued by the hearing official.

Sec. 10. Written Recommendation

    (a) Issuance of Recommendation. The hearing official shall issue a 
written recommendation on the case which will be transmitted to the 
Secretary for a final decision. The written recommendation will set 
forth the reasons for the recommendation and describe the basis 
therefore in the record. The hearing official will send a copy of the 
recommendation to the State and SAMHSA.
    (b) Date of Recommendation. The hearing official will attempt to 
issue his or her recommendation within 15 days of the date of the oral 
presentation, the date on which the transcript is received, or the date 
of the last submission by either party, whichever is later. If there is 
no oral presentation, the recommendation will normally be issued within 
15 days of the date of receipt of the last reply brief. Once issued, 
the hearing official will immediately communicate the recommendation to 
each party.

    Dated: March 28, 1995.
Nelba Chavez,
Administrator.
[FR Doc. 95-8648 Filed 4-7-95; 8:45 am]
BILLING CODE 4162-20-M