Appeal Procedures

34 C.F.R. Part ..., Subpart E
in effectEffective: 2024-07-01

34 C.F.R. § 86.400 What is the scope of this subpart?

(a) The procedures in this subpart are the exclusive procedures governing appeals of decisions by a designated Department official to demand the repayment of Federal financial assistance or terminate the eligibility of an IHE to receive some or all forms of Federal financial assistance for violations of this part. (b) An Administrative Law Judge (ALJ) hears appeals under this subpart.

34 C.F.R. § 86.401 What are the authority and responsibility of the ALJ?

(a) The ALJ regulates the course of the proceeding and conduct of the parties during the hearing and takes all steps necessary to conduct a fair and impartial proceeding. (b) The ALJ is not authorized to issue subpoenas. (c) The ALJ takes whatever measures are appropriate to expedite the proceeding. These measures may include, but are not limited to— (1) Scheduling of conferences; (2) Setting time limits for hearings and submission of written documents; and (3) Terminating the hearing and issuing a decision against a party if that party does not meet those time limits. (d) The scope of the ALJ's review is limited to determining whether— (1) The IHE received any form of Federal financial assistance after becoming ineligible to receive that assistance because of failure to submit a certification; or (2) The IHE violated its certification.

34 C.F.R. § 86.402 Who may be a party in a hearing under this subpart?

(a) Only the designated Department official and the IHE that is the subject of the proposed termination or recovery of Federal financial assistance may be parties in a hearing under this subpart. (b) Except as provided in this subpart, no person or organization other than a party may participate in a hearing under this subpart.

34 C.F.R. § 86.403 May a party be represented by counsel?

A party may be represented by counsel.

34 C.F.R. § 86.404 How may a party communicate with an ALJ?

(a) A party may not communicate with an ALJ on any fact at issue in the case or on any matter relevant to the merits of the case unless the other party is given notice and an opportunity to participate. (b)(1) To obtain an order or ruling from an ALJ, a party shall make a motion to the ALJ. (2) Except for a request for an extension of time, a motion must be made in writing unless the parties appear in person or participate in a conference telephone call. The ALJ may require a party to reduce an oral motion to writing. (3) If a party files a written motion, the party shall do so in accordance with § 86.405. (4) Except for a request for an extension of time, the ALJ may not grant a party's written motion without the consent of the other party unless the other party has had at least 21 days from the date of service of the motion to respond. However, the ALJ may deny a motion without awaiting a response. (5) The date of service of a motion is determined by the standards for determining a filing date in § 86.405(d).

34 C.F.R. § 86.405 What are the requirements for filing written submissions?

(a) Any written submission under this subpart must be filed by hand-delivery, by mail, or by facsimile transmission. The Secretary discourages the use of facsimile transmission for documents longer than five pages. (b) If a party files a brief or other document, the party shall serve a copy of the filed material on the other party on the filing date by hand-delivery or by mail. If agreed upon by the parties, service of a document may be made upon the other party by facsimile transmission. (c) Any written submission must be accompanied by a statement certifying the date that the filed material was filed and served on the other party. (d)(1) The filing date for a written submission is the date the document is— (i) Hand-delivered; (ii) Mailed; or (iii) Sent by facsimile transmission. (2) If a scheduled filing date falls on a Saturday, Sunday, or Federal holiday, the filing deadline is the next Federal business day. (e) A party filing by facsimile transmission is responsible for confirming that a complete and legible copy of the document was received by the Department. (f) If a document is filed by facsimile transmission, the Secretary or the designated Department official, as applicable, may require the filing of a follow-up hard copy by hand-delivery or by mail within a reasonable period of time.

34 C.F.R. § 86.406 What must the ALJ do if the parties enter settlement negotiations?

(a) If the parties to a case file a joint motion requesting a stay of the proceedings for settlement negotiations or for the parties to obtain approval of a settlement agreement, the ALJ grants the stay. (b) The following are not admissible in any proceeding under this part: (1) Evidence of conduct during settlement negotiations. (2) Statements made during settlement negotiations. (3) Terms of settlement offers. (c) The parties may not disclose the contents of settlement negotiations to the ALJ. If the parties enter into a settlement agreement and file a joint motion to dismiss the case, the ALJ grants the motion.

34 C.F.R. § 86.407 What are the procedures for scheduling a hearing?

(a) If the IHE requests a hearing by the time specified in § 86.304(a)(3), the designated Department official sets the date and the place. (b)(1) The date is at least 15 days after the designated Department official receives the request and no later than 45 days after the request for hearing is received by the Department. (2) On the motion of either or both parties, the ALJ may extend the period before the hearing is scheduled beyond the 45 days specified in paragraph (b)(1) of this section. (c) No termination takes effect until after a hearing is held and a decision is issued by the Department. (d) With the approval of the ALJ and the consent of the designated Department official and the IHE, any time schedule specified in this section may be shortened.

34 C.F.R. § 86.408 What are the procedures for conducting a pre-hearing conference?

(a)(1) A pre-hearing conference may be convened by the ALJ if the ALJ thinks that such a conference would be useful, or if requested by— (i) The designated Department official; or (ii) The IHE. (2) The purpose of a pre-hearing conference is to allow the parties to settle, narrow, or clarify the dispute. (b) A pre-hearing conference may consist of— (1) A conference telephone call; (2) An informal meeting; or (3) The submission and exchange of written material.

34 C.F.R. § 86.409 What are the procedures for conducting a hearing on the record?

(a) A hearing on the record is an orderly presentation of arguments and evidence conducted by an ALJ. (b) An ALJ conducts the hearing entirely on the basis of briefs and other written submissions unless— (1) The ALJ determines, after reviewing all appropriate submissions, that an evidentiary hearing is needed to resolve a material factual issue in dispute; or (2) The ALJ determines, after reviewing all appropriate submissions, that oral argument is needed to clarify the issues in the case. (c) The hearing process may be expedited as agreed by the ALJ, the designated Department official, and the IHE. Procedures to expedite may include, but are not limited to, the following: (1) A restriction on the number or length of submissions. (2) The conduct of the hearing by telephone conference call. (3) A review limited to the written record. (4) A certification by the parties to facts and legal authorities not in dispute. (d)(1) The formal rules of evidence and procedures applicable to proceedings in a court of law are not applicable. (2) The designated Department official has the burden of persuasion in any proceeding under this subpart. (3)(i) The parties may agree to exchange relevant documents and information. (ii) The ALJ may not order discovery, as provided for under the Federal Rules of Civil Procedure, or any other exchange between the parties of documents or information. (4) The ALJ accepts only evidence that is relevant and material to the proceeding and is not unduly repetitious. (e) The ALJ makes a transcribed record of any evidentiary hearing or oral argument that is held, and makes the record available to— (1) The designated Department official; and (2) The IHE on its request and upon payment of a fee comparable to that prescribed under the Department of Education Freedom of Information Act regulations (34 CFR part 5).

34 C.F.R. § 86.410 What are the procedures for issuance of a decision?

(a)(1) The ALJ issues a written decision to the IHE, the designated Department official, and the Secretary by certified mail, return receipt requested, within 30 days after— (i) The last brief is filed; (ii) The last day of the hearing if one is held; or (iii) The date on which the ALJ terminates the hearing in accordance with § 86.401(c)(3). (2) The ALJ's decision states whether the violation or violations contained in the Secretary's notification occurred, and articulates the reasons for the ALJ's finding. (3) The ALJ bases findings of fact only on evidence in the hearing record and on matters given judicial notice. (b)(1) The ALJ's decision is the final decision of the agency. However, the Secretary reviews the decision on request of either party, and may review the decision on his or her own initiative. (2) If the Secretary decides to review the decision on his or her own initiative, the Secretary informs the parties of his or her intention to review by written notice sent within 15 days of the Secretary's receipt of the ALJ's decision. (c)(1) Either party may request review by the Secretary by submitting a brief or written materials to the Secretary within 20 days of the party's receipt of the ALJ's decision. The submission must explain why the decision of the ALJ should be modified, reversed, or remanded. The other party shall respond within 20 days of receipt of the brief or written materials filed by the opposing party. (2) Neither party may introduce new evidence on review. (d) The decision of the ALJ ordering the repayment of Federal financial assistance or terminating the eligibility of an IHE does not take effect pending the Secretary's review. (e)(1) The Secretary reviews the ALJ's decision considering only evidence introduced into the record. (2) The Secretary's decision may affirm, modify, reverse or remand the ALJ's decision and includes a statement of reasons for the decision.

34 C.F.R. § 86.411 What are the procedures for requesting reinstatement of eligibility?

(a)(1) An IHE whose eligibility to receive any or all forms of Federal financial assistance has been terminated may file with the Department a request for reinstatement as an eligible entity no earlier than 18 months after the effective date of the termination. (2) In order to be reinstated, the IHE must demonstrate that it has corrected the violation or violations on which the termination was based, and that it has met any repayment obligation imposed upon it under § 86.301(b)(1) of this part. (b) In addition to the requirements of paragraph (a) of this section, the IHE shall comply with the requirements and procedures for reinstatement of eligibility applicable to any Federal program under which it desires to receive Federal financial assistance.

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