EDGAR Part 86 Subpart E (Appeal Procedures)
Subpart E_Appeal Procedures
Sec. 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.
(Authority: 20 U.S.C. 1145g)
[55 FR 33581, Aug. 16, 1990, as amended at 61 FR 66225, Dec. 17, 1996]
Sec. 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.
(Authority: 20 U.S.C. 1145g)
[55 FR 33581, Aug. 16, 1990, as amended at 61 FR 66225, Dec. 17, 1996]
Sec. 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.
(Authority: 20 U.S.C. 1145g)
[55 FR 33581, Aug. 16, 1990, as amended at 61 FR 66225, Dec. 17, 1996]
Sec. 86.403 May a party be represented by counsel?
A party may be represented by counsel.
(Authority: 20 U.S.C. 1145g)
Sec. 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 Sec. 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 Sec. 86.405(d).
(Authority: 20 U.S.C. 1145g)
Sec. 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.
(Authority: 20 U.S.C. 1145g)
[57 FR 56795, Nov. 30, 1992]
Sec. 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.
(Authority: 20 U.S.C. 1145g)
Sec. 86.407 What are the procedures for scheduling a hearing?
(a) If the IHE requests a hearing by the time specified in Sec.
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.
(Authority: 20 U.S.C. 1145g)
[55 FR 33581, Aug. 16, 1990, as amended at 61 FR 66225, Dec. 17, 1996]
Sec. 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.
(Authority: 20 U.S.C. 1145g)
[55 FR 33581, Aug. 16, 1990, as amended at 61 FR 66225, Dec. 17, 1996]
Sec. 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).
(Authority: 20 U.S.C. 1145g)
[55 FR 33581, Aug. 16, 1990, as amended at 61 FR 66225, Dec. 17, 1996]
Sec. 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 Sec. 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.
(Authority: 20 U.S.C. 1145g)
[55 FR 33581, Aug. 16, 1990, as amended at 61 FR 66225, Dec. 17, 1996]
Sec. 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 Sec. 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.
(Authority: 20 U.S.C. 1145g)
[55 FR 33581, Aug. 16, 1990, as amended at 61 FR 66225, Dec. 17, 1996]
EDGAR version June 23, 2005
