DAB Decision 61
July 3, 1979 San Jose City College; Docket No. 78-48; Decision No. 61
Malone, Thomas; Mason, Malcolm S. Hiller, Manuel B.
SUMMARY
(The following summary is prepared on the responsibility of the
Executive Secretary of the Board as a convenience to the interested
public. It is not an official part of the decision and has not been
reviewed by the Panel. Similar official summaries of earlier cases
appear in 45 CPA Part 16, Appendix.)
Grantee appealed from the determination of the Deputy Commissioner,
Bureau of Sigher and Continuing Education, disallowing funds charged to
its Veterans' Cost-of-Instruction grants in two successive years.
Grantee expended $37,735 for general instructional expenses pursuant to
program regulations permitting the use of any balance remaining after
the basic program requirements were met for that purpose. OE disallowed
these expenditures on the ground that grantee had not met a part of the
program requirement for special education programs, specifically, the
requirement for providing remedial classes. Although the basis of the
disallowance initially appeared to be that grantee had used its existing
remedial classes instead of establishing separate remedial classes for
veterans, OE later clarified its position as being that grantee did not
perform an assessment of the remedial needs of its veteran students. The
Board sustained the appeal on this issue relying on its holding in
University of Arizona, Docket No. 78-Il, Docket No. 58, that not only
were separate classes not required, but also there was no requirement in
the legislation or regulations for an assessment of veterans' needs in
connection with the special education programs.
The Board indicated that it might have accepted an argument that grantee
should be required to make separate classes available if grantee had
determined, in fact, that such classes were better suited to veterans'
needs; however, in this case, the Board was satisfied that the grantee
had not made such a determination.
DECISION
This case involves an appeal by San Jose City College (grantee) dated
June 23, 1978, from the determination of the Deputy Commissioner, Bureau
of Higher and Continuing Education, Office of Education, disallowing
$37,735 of a total of $231,945 awarded to grantee to conduct a Veterans'
Cost-of-Instruction Program in fiscal years 1974 and 1975. The program
regulations, promulgated pursuant to Section 420 of the Higher Education
Act of 1965, as amended, (20 U.S.C. 1070e-l( e)), after the fiscal year
1974 grant was awarded, permit an institution to use for instructional
expenses in academically related programs of the institution any funds
which are not needed to fulfill certain program requirements. 45 CFR
189.17(a). The $37,735 of grant funds expended by grantee for such
instructional expenses was disallowed on the ground that grantee had not
implemented special education programs for veteran students as required
by 20 U.S.C. 1070e-l(c)(l)(B)(i) and corresponding regulations at Part
189 of Title 45 of the Code of Federal Regulations.
Grantee took the position, in its response to the audit report on which
the disallowance was based and in its application for review by the
Board, that its existing remedial courses and counseling services
(including the administration of placement tests and other special
tests), which were available to all students including veterans,
together with two tutorial services specifically designed for veterans,
adequately served the needs of veterans and fulfilled the requirement
for special education programs. The audit report stated, however, that
grantee's "basic remedial classes...are not comparable to a special
education program designed specifically to assist veterans." OE's
response to the appeal simply cited various provisions in the
regulations to support the disallowance.
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On January 8, 1979, the Board Chairman issued an Order to Show Cause in
this case. The Order took OE's position to be that a separate special
education program limited to veterans only was required. It stated that
the applicable statute and regulations neither specifically authorized
nor specifically prohibited the use of an existing special education
program to satisfy program requirements, and directed the parties to
show cause in writing why the appeal should not be either denied or
granted on one ground or the other. The Order also took note of the
fact, reported by the auditor, that grantee had prepared but never
implemented a proposal for a separate special education program for
veterans only. The Order stated that, even if it is determined that the
use of an existing special education program was authorized by law, it
might not have been proper in this case as a matter of fact if grantee
had made a determination that a separate program was necessary to meet
the needs of veterans. It asked grantee to furnish certain information
relating to its proposal for a separate special education program, and
directed the parties to show cause why the appeal should not be denied
on the ground that grantee, having determined that a special education
program was necessary to meet the needs of educationally disadvantaged
veterans, did not implement it.
OE's response to the Order denied that its position was that separate
special education programs for veterans only were required. OE asserted
that veterans have "educational deficiencies quite different by age and
experience from the needs of ...regular students'' and that therefore an
''individualized assessment'' of "the specific educational needs of
veteran students" is required in order to determine if their needs can
be met by existing programs. It stated that the disallowance was based
on the auditor's finding that "such assessment had not formally
occurred." OE further stated that grantee "did in fact have some
reservations as to the adequacy of its existing special education
programs and so indicated to the authorized auditor..." and concluded
that the appeal should be denied on the ground that "the statute and
regulations call for and establish criteria for assessment and should be
evidenced by the grantee and documentation forwarded showing that the
grantee did assess the veterans' needs and fulfilled these needs by its
educational programs."
OE's response did not point to any provisions in the statute or
regulations which establish criteria for an assessment of veterans
needs. Its response also did not specify in what respects it found the
testing and counseling process described by grantee, which is apparently
a standard technique used by educators, deficient as a means of
assessing veterans' needs.
The Board's recent decision in University of Arizona, Docket No. 78-11,
Decision No. 58, June 19, 1979, dealt in part with some of the same
issues raised in this case. In that case, it also appeared initially
that the basis of the disallowance was grantee's use of existing
remedial
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classes to meet the requirement of the Veterans Cost-of-Instruction
program for special education programs, and OE also later clarified its
position as being that separate classes for veterans were not required
if an assessment of the needs of veteran students showed that existing
classes adequately met those needs. The Board there held that not only
were separate remedial classes for veterans not required, but also there
was no requirement in the program legislation or implementing'
regulations for an assessment of veterans' needs in connection with the
special education programs.
Although there is no requirement for an assessment of veterans' needs to
justify the use of existing classes, thee is nevertheless an argument
that if grantee determined that separate classes were better suited to
veterans' needs, grantee should be required to make such classes
available. We need not decide that question, however, since grantee's
response to the Order to Show Cause indicates that it did not in fact
make such a determination. Grantee's response states that, while its
Office of Veterans' Affairs proposed a separate special education
program for veterans only, that program was virtually the same as its
existing program of remedial courses and was proposed solely to enable
veterans to maximize their benefits under the G.I. bill, since the
classes were to be offered on a noncredit basis and thus would not count
against such benefits. Grantee further noted that a special 3-unit
course which was provided only for veterans in the spring of 1974,
consisting of units in College Study Techniques, Career Planning, and
Introduction to College, was dropped the next semester because grantee
felt that the course did not provide benefits to veterans which could
not be provided in other classes which were open to all students.
In view of grantee's explanation of the nature and intended purpose of
its proposal for a separate special education program for veterans only,
there appears to be no need to pursue the question whether grantee would
have satisfied the program requirements if it had offered an adequate
special education program but not the one it thought best suited to the
needs of its veteran students. OE's statement regarding some
reservations having been expressed by grantee as to the adequacy of its
existing program appears to refer to an admission made to the auditor by
a college official, who understood the auditor to mean that a special
education program must be restricted to veterans, that grantee did not
have such a program. We agree with grantee that this admission should
not be taken as a concession that its existing program did not meet the
needs of veteran students.
Conclusion
We find that grantee's use of its existing remedial courses and
counseling services, together with two tutorial services specifically
designed for
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veterans, fulfilled the requirement for special education programs for
veterans. The appeal is granted in full. D11 May 15, 1992