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shall consider the accessibility of the facility, and the extent to which services will be made available to the residents of the State making the request.

(c) Transfer of allotment to the allotment for community mental health facilities. A State may submit a request in writing to the Administrator that a specified portion of its allotment be added to the allotment to such State under Title II of the Act for the construction of community mental health centers. The Administrator shall adjust the allotments of such State upon either:

(1) Certification by the State agency that it has afforded a reasonable period of time, not less than 6 months, during which application could be made for the portion so specified and that no approvable applications for such funds were received during that period of time; or

(2) A demonstration satisfactory to the Administrator that the need for community mental health centers is substantially greater than for facilities for the mentally retarded, such demonstration to include the concurrence or other views of the State advisory council designated under section 134 (a) (3) of Title I, Part C of the Act.

§ 416.11 State plan: Submission; modification; publicizing; accessibility.

(a) Submission of State plan. Each State wishing to participate in the program shall submit to the Administrator a State plan which conforms to the Act, the regulations of this subpart, and procedures prescribed by the Administrator.

(b) Modification of the State plan. The State agency shall from time-totime as necessary review its overall State plan. Annually, the State agency shall submit to the Administrator a report which contains such revision of the construction program as the State agency deems necessary to administer the annual construction allotment. A complete revision of the State plan, including the construction program, is to be submitted biennially. Amendments to the State pian may be

necessary.

submitted whenever

(c) State advisory council. The State plan shall provide for the designation of a State advisory council which shall include representatives of each of the following: (1) State agencies concerned with planning, operation, and utilization of facilities for the mentally retarded; (2) non-government organizations or groups concerned with (i) education, (ii)

employment, (iii) rehabilitation, (iv) welfare, and (v) health; and (3) representatives of consumers of services, such as parents' groups. Representatives of consumers of service shall include representatives of minority groups. The advisory council shall meet at least once a year to advise and consult with the State agency in carrying out the State plan.

(d) Publicizing the State plan. At least 30 days prior to the submission of the State plan or revised construction program to the Administrator, the State agency shall submit evidence that (1) there was published or caused to be published in newspapers and other news media having general circulation throughout the State a general description of the plan and the construction program; and (2) copies of the plan have been made available to interested State and local governmental and private nonprofit agencies and organizations, such as the Comprehensive Health Planning Agency, local area wide health and rehabilitation planning agencies, and units of State and local governments engaged in local area wide planning (Demonstration Cities and Metropolitan Development Act of 1966, Public Law 89754) for their review and comments. The plan shall be made available for examination as a public document at the office of the State agency.

(e) Construction schedule. After approval of the State plan and the construction program the State agency shall establish an annual construction schedule listing projects to be approved in order of relative need insofar as funds are available for construction and for maintenance and operation, on forms prescribed by the Administrator.

(f) Audit. The State plan shall provide that the Comptroller General of the United States or his duly authorized representatives will have access for purposes of audit and examination to such records of the State agency as are required to be maintained by the Administrator. § 416.12 Adequate services and facilities.

(a) Adequate services. The State plan shall provide for services which are necessary to provide adequate mental retardation services for all persons in the State which include:

(1) Diagnostic and evaluation services;

(2) Treatment services;
(3) Training services;
(4) Educational services;

(5) Personal care services;

(6) Sheltered workshop services. (b) Adequate facilities. (1) The State plan shall provide for adequate facilities so that all persons in the State including those unable to pay for services shall have access to adequate services in such numbers as will meet the needs of each area taking into account the caseloads necessary to maintain and operate efficient facilities and the financial resources available therefor. Facilities shall be so planned to serve the needs of the particular community or communities in or near which the facility is located.

(2) The State plan shall provide that a minimum number of 1 percent of the population of the State shall be used to determine need for services in each planning area. Use of any percentage in excess of 3 percent must be submitted to the Administrator for approval prior to its use in the State plan.

(c) Planning. The State plan shall show that:

(1) It is consistent with the comprehensive planning for mental retardation services in the State;

(2) Cognizance has been taken of health, rehabilitation, and welfare planning efforts and planning in urban developments and for other related facilities; and

(3) There has been coordination with city, metropolitan areas, and interstate planning agencies to achieve consistency between the State plan for, and the delineation of, areas to be served by mental retardation facilities and other health, rehabilitation, and welfare plans and activities.

(d) Size of facility. (1) Diagnostic and evaluation clinics shall be planned to provide services for an annual caseload of not less than 150 or more than 300 retardates.

(2) Day facilities shall be planned to provide services for not less than 40 or more than 200 retardates.

(3) Residential facilities shall be planned for not less than 40 or more than 500 retardates.

(4) The Administrator may at the request of the State agency modify requirements in this paragraph if he finds that such modifications conform with acceptable program standards.

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tiguous areas. The basic population, economic, social, and cultural characteristics of each area shall be set forth and described.

(b) Relative need. The relative need of each delineated area shall be determined according to the following criteria and the State plan shall indicate the relative weight assigned to each of these criteria in ranking the areas of the State:

(1) Need for additional services for the mentally retarded;

(2) Existence of low income families, low per capita income, chronic unemployment, and substandard housing;

(3) Mean years of schooling completed;

(4) Rate of infant mortality;

(5) Special needs of certain mentally retarded groups within the area especially those with associated handicaps and those beyond school age; and

(6) Present availability of public and private community resources for the retarded (including personnel, services, and facilities) and the utilization of those resources.

The criteria listed in subparagraphs (5) and (6) of this paragraph may not be weighted more than one each without prior approval of the Administrator.

(c) Approval of projects. Projects shall be considered in accordance with the priority ranking of areas. If more than one project is submitted from the same area the projects shall be considered in order of importance as given below:

(1) Facilities which alone or in conjunction with other existing facilities provide comprehensive services for the retarded in the particular community or communities.

(2) Facilities which alone or in conjunction with other existing facilities provide multiple but less than comprehensive services for the retarded in the particular community or communities.

(3) Facilities which provide a single service for the retarded in the particular community or communities.

§ 416.14 General standards of construction and equipment.

The State agency shall adopt general standards of construction and equipment for facilities for the mentally retarded assisted under this program. The standards adopted shall not be less than the

general standards prescribed by the Administrator and set forth in § 416.27 "Appendix A-General standards of construction and equipment.”

§ 416.15 Construction program.

The State program for the construction of facilities for the mentally retarded shall be developed in the following manner:

(a) The State agency shall determine the need for facilities and services in accordance with §§ 416.12 and 416.13 taking into account existing facilities and services. The plan for a delineated area shall take into account planning activities of local agencies and shall be developed after consultation with such local planning bodies as may be involved.

(b) The State agency shall determine, through field investigation and otherwise, the approximate locations in which facilities should be constructed.

(c) After having determined the need for facilities and services, the State agency shall develop an overall construction program. The program shall set forth all such needs in accordance with the standards specified in § 416.12 and shall, insofar as funds are available, provide for construction in the order of relative need determined in accordance with § 416.13.

§ 416.16 Minimum standards of maintenance and operation.

The State plan shall provide minimum standards for the maintenance and operation of facilities receiving aid under Part C, Title I of the Act, and effective not later than July 1, 1969, shall provide for enforcement of such standards. § 416.17 Personnel administration.

(a) A system of personnel administration on a merit basis shall be established and maintained with respect to the personnel employed in the administration of the State plan. Such a system shall include provision for:

(1) Impartial administration of the merit system;

(2) Operation on the basis of published rules or regulations;

(3) Classification of all positions on the basis of duties and responsibilities and establishment of qualifications necessary for the satisfactory performance of such duties and responsibilities;

(4) Establishment of compensation schedules adjusted to the responsibility and difficulty of the work;

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(5) Selection of permanent appointees on the basis of examinations so constructed as to provide a genuine test of qualifications and so conducted as to afford all qualified applicants opportunity to compete;

(6) Advancement on the basis of capacity and meritorious service; and

(7) Tenure of permanent employees. (b) Substantial compliance with the Standards for a Merit System of Personnel Administration, issued by the Secretary of Health, Education, and Welfare, the Secretary of Labor, and the Secretary of Defense on January 23, 1963, 28 F.R. 734, including any subsequent amendments thereof, will be deemed to meet the requirements of the regulations in this part.

(c) No full-time officer or employee of the State agency, or any firm, organization, corporation, or partnership which such officer or employee owns, controls, or directs, shall receive funds from the applicant directly or indirectly, in payment for services provided in connection with the planning, design, construction, or equipping of the project.

§ 416.18 Fair hearings.

The State plan shall provide an opportunity for an appeal to and a fair hearing before the State agency to every applicant for a construction project who is dissatisfied with any action of the State agency regarding its application.

§ 416.19

Application; submittal; amendment; processing.

(a) Submittal of application. Construction applications, including both a narrative description and an estimate of the cost of the project, shall be submitted to the Administrator through the State agency on forms prescribed by the Administrator. In the case of proposed acquisition of a building, the application shall include (1) such documentation submitted by the applicant as the Administrator may prescribe (including the reports of such real estate appraisers as the Administrator may approve), (2) a statement that the costs in which Federal participation is requested are not excessive for providing mental retardation services, and (3) a statement that the architectural, structural, fire safety, and other pertinent features of the building, including electrical and mechanical systems, as modified by any proposed ex

pansion, remodeling, or alteration will be suitable for the provision of mental retardation services.

(b) Amendment to application. An amendment to any application approved by the Administrator shall be processed in the same manner as an original application, except that the original application's conformity with the priority regulations shall suffice for an amendment which does not modify the factors on which the priority was granted.

(c) Processing of application. The State agency shall approve, recommend, and forward applications received in the order of priority, except that the State agency may approve, recommend and forward to the Administrator applications out of the order of priority if:

(1) The State agency has afforded reasonable opportunity for development and presentation of projects in the order of priority; and

(2) The State agency certifies to the Administrator that financial resources for the construction, maintenance, and operation of projects of higher priority are not then available. Applications for projects located in metropolitan areas (designated by the Bureau of the Budget, in accordance with section 204, Public Law 89-754) and in model cities are to be submitted to the appropriate areawide planning agency for comments. § 416.20 Assurances from applicant.

In addition to any other requirements imposed by law, each construction grant shall be subject to the condition that the applicant will furnish and comply with the following assurances. The Administrator may, at any time, approve exceptions to these conditions and assurances where he finds that such exceptions are not inconsistent with the Act and the purposes of the program:

(a) That applicant (or other public or nonprofit agency which is to operate the facility) has or will have a fee simple or such other estate or interest in the site including necessary easements and rights-of-way, sufficient to assure for a period of not less than 50 years undisturbed use and possession for the purpose of the construction and operation of the facility;

(b) That the Administrator's approval of the final working drawings and specifications, which conform to the general standards of construction and equipment, will be obtained before the

project is advertised or placed on the market for bidding;

(c) That applicant will perform actual construction work by the lump sum (fixed price) contract method; employ adequate methods of obtaining competitive bidding prior to awarding the construction contract, either by public advertising or circularizing three or more bidders, and award the contract to the responsible bidder submitting the lowest acceptable bid; and will purchase all fixed equipment by adequate methods of competitive bidding (including such fixed equipment as is not purchased through the construction contract) and award the contract to the responsible bidder submitting the lowest acceptable bid, except that competitive bidding procedures need not be employed for the purchase of specific fixed equipment items which are not included in the construction contract where such action is found by the State agency and the Administrator, upon written justification by the applicant, to be required by the needs of the program;

(d) That applicant will enter into no construction contract or contracts for the project or a part thereof, the cost of which is in excess of the estimated cost approved in the application for that portion of the work covered by the plans and specifications, without the prior approval of the Administrator;

(e) That applicant will submit to the Adminisrtator for prior approval changes that substantially alter the scope of work, function, utilities, or safety of the facility;

(f) That applicant will construct the project, or cause it to be constructed, to final completion in accordance with the application and approved plans and specifications;

(g) That applicant will maintain adequate and separate accounting and fiscal records and accounts for all funds provided from any source to pay the cost of the project, and permit audit of such records and accounts at any reasonable time;

(h) That applicant will furnish progress reports and such other information as the Administrator may require;

(i) That applicant will provide and maintain competent and adequate architectural or engineering supervision and inspection at the construction site to insure that the completed work conforms with the approved plans and specifications;

(j) That sufficient funds will be available to meet the non-Federal share of the cost of constructing the facility;

(k) That sufficient funds will be available when construction is completed for effective use of the facility for the purposes for which it is being constructed;

(1) (1) That any laborer or mechanic employed by any contractor or subcontractor in the performance of work on the construction of the facility will be paid wages at rates not less than those prevailing on similar construction in the locality as determined under the DavisBacon Act (40 U.S.C. 276 et seq.) and will receive compensation at a rate not less than 11⁄2 times his basic rate of pay for all hours worked in any workweek in excess of 8 hours in any calendar day or 40 hours in the workweek (40 U.S.C. 327332); and

(2) That the following conditions and provisions will be included in all construction contracts;

(1) Applicable labor provisions of the Copeland Act (Anti-Kickback) and the Contract Work Hours Standards Act except in the case of contracts in the amount of $2,000 or less;

(ii) The contractor shall furnish performance and payment bonds, each of which shall be in the full amount of the contract price, and shall maintain, during the life of the contract, adequate fire, workmen's compensation, public liability and property damage insurance;

(iii) Representatives of the Administrator and State agency will have access at all reasonable times to work wherever it is in preparation or progress, and the contractor shall provide proper facilities for such access and inspection.

(m) That the facility will be operated and maintained in accordance with the minimum standards prescribed by the appropriate State regulatory agency for the maintenance and operation of such facilities;

(n) That the applicant will incorporate, or cause to be incorporated, into construction contracts paid for in whole or in part with funds obtained from the Federal Government under this subpart, such provisions on nondiscrimination in employment as are required by and pursuant to Executive Order No. 11246, and that the grantee will otherwise comply with requirements prescribed by and pursuant to such order;

(0) That applicant will comply with the provisions of Executive Order No. 11296, relating to evaluation of flood

hazards; and the provisions of Executive Order No. 11288 relating to the prevention, control, and abatement of water pollution;

(p) That applicant will incorporate into the bid document and construction contracts the standards for the design, construction and alteration of buildings issued by the Administrator of the General Services Administration or the Secretary of Housing and Urban Development pursuant to the Act approved August 12, 1968 (Public Law 90-480). Prior to the issuance of such standards the applicant will incorporate into such bid document and construction contracts the "American Standard Specifications for Making Buildings and Facilities Accessible to, and Usable by, the Physically Handicapped," No. A117.1-1961, as modified from time-to-time.

(q) That the applicant will conform to all the applicable requirements of the State plan and the regulations of this subpart.

§ 416.21 Community service; services for persons unable to pay; nondiscrimination.

Before an application for the construction of a facility for the mentally retarded is recommended by a State agency for approval, the State agency shall obtain assurances from the applicant that:

(a) The facility will furnish a community service; and that consideration will be given to involvement of residents of the community in management and operation of the facility;

(b) The facility will furnish a reasonable volume of services to persons unable to pay therefor. As used in this paragraph, "persons unable to pay therefor" includes persons who are otherwise selfsupporting but are unable to pay the full cost of needed services. Such services may be paid for wholly or partly out of public funds or contributions of individuals and private and charitable organizations such as Community Chest or may be contributed at the expense of the facility itself. In determining what constitutes a reasonable volume of services to persons unable to pay therefor, there shall be considered conditions in the area to be served by the applicant, including the amount of such services that may be available otherwise than through the applicant. The requirements of assurances from the applicant may be waived if the applicant demonstrates to

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