Current through Register Vol. 35, No. 18, September 24, 2024
A. Scope: The procedures set forth in this
section shall be implemented to comply with the statutory and regulatory
requirements of
20 U.S.C. Section
1231 b-2(a) and
34 CFR
76.401 so as to afford the opportunity for a
hearing to any applicant or subgrantee aggrieved by a final action of the
department and alleging a violation of state or federal law, rules,
regulations, or guidelines governing the applicable program with regard to the
department's (i) disapproving or failing to approve its application or program
in whole or in part; (ii) failing to provide funds in amounts in accord with
the requirements of laws and regulations; (iii) ordering, in accordance with
the department's audit resolution determination, the repayment of misspent or
misapplied federal funds; or (iv) terminating further assistance for an
approved program.
(1) The department will, if
required by federal statute or regulation, provide an opportunity for a hearing
prior to disapproval of the application.
(2) If the department is not required to
provide the opportunity for a hearing prior to the disapproval of the
application, the department will provide the opportunity for the hearing either
before or after disapproval of the application.
B. Procedures
(1) Request for hearing: The applicant or
subgrantee shall request in writing the hearing within thirty (30) days of the
date of the final letter of determination or notice of intended
action.
(2) Availability of
records: The department shall make available, at reasonable times and places,
to each applicant or subgrantee all records of the department pertaining to the
review or appeal the applicant is conducting, including records of other
applicants.
(3) Hearing: Within
thirty (30) days after the department receives a request for a hearing pursuant
to this section, the department shall hold a hearing on the record and shall
review its action or proposed action. The following procedures shall apply:
(a) a written notice of hearing to all
parties;
(b) an opportunity for all
parties to participate in the hearing:
(c) prohibition of ex parte contacts between
one party and the impartial hearing officer;
(d) an impartial hearing officer, who has not
taken part in the investigation and who is not under the supervision of a
department employee who did, shall be appointed by the secretary of public
education;
(e) the right of the
parties to appear with counsel;
(f)
the right to present oral and written evidence and to conduct cross
examinations;
(g) the right to
submit proposed findings of fact and conclusions of law; and
(h) the compiling and availability of a
record upon which the impartial hearing officer's recommended findings of fact,
conclusions of law, and decision are based.
(4) Ruling
(a) No later than ten (10) days after the
hearing, the department shall issue its written ruling, including findings of
fact and reasons for the ruling.
(b) If the department determines that its
action or proposed action in whole or in part was contrary to federal or state
statutes, regulations, and guidelines governing the applicable program, the
department shall rescind its action or proposed action in whole or in
part.
(5) Appeal to the
secretary: If the department does not rescind its final action or proposed
action after a review under this section, the applicant may appeal to the
secretary. The applicant shall file a notice of the appeal with the secretary
within twenty (20) days after the applicant has been notified by the department
of the department's ruling.
C. Repayment: Repayment of misspent or
misapplied federal funds, as determined through the audit resolution
determination, shall be made from nonfederal sources or from federal funds, no
accountability for which is required to the federal government.
