Head Start

INFORMATION MEMORANDUM

TO: Head Start Grantees and Delegate Agencies, and Early Head Start Grantees

SUBJECT: Implementation of Regulation Regarding Hearings for a Grantee Which Has Been Summarily Suspended

This Information Memorandum (IM) is being issued to clarify how the Administration for Children, Youth and Families (ACYF) will implement certain provisions of the Head Start regulations at 45 C.F.R. Part 1303. Those regulations, which were amended in 1992, among other things provide for appeals by grantees who have been notified that a suspension has been issued for more than 30 days or has been continued for more than 30 days. Specifically, this IM is intended to make clear that such a grantee may receive an expedited hearing on the suspension.

In preparing this IM, ACYF has consulted with the Departmental Appeals Board (Board), which is responsible for conducting hearings.

The following provisions are intended to advise grantees of how the relevant regulatory provisions will be implemented and to remind them of certain key provisions in the regulations.

• A grantee must file a request for a hearing within five (5) days of its receipt of the suspension notice if the original suspension is for more than 30 days. If the original suspension is for 30 days or less, but continues beyond 30 days as provided for in 45 C.F.R. § 1303.12(f), the grantee's appeal must be filed within five (5) days of the expiration of the 30 day period. (Under the Board's regulations at 45 C.F.R. § 16.20(e), if sent by U.S. mail, the appeal is considered filed when postmarked; otherwise, the appeal is considered filed when received by the Board.) If it is requesting an expedited hearing, the grantee must specifically state that in its request. The grantee must meet the filing deadline even if it previously requested an informal meeting on a summary suspension of 30 days or less under 45 C.F.R. § 1303.12(a)(5) and that meeting has not yet been held.
• If the grantee requests an expedited hearing, the Board will convene a telephone conference with the parties immediately upon receipt of the appeal in order to schedule the hearing. The hearing will begin within the 30-day period following the Board's receipt of the appeal unless:
  1. the grantee advises the Board that it or its witnesses will not be available for a hearing within that time period;
  2. the grantee requests that the hearing be held outside of Washington, D.C., and the Board is unable to obtain a hearing facility and make travel arrangements within that time period; or
  3. the grantee has previously requested an informal meeting on a summary suspension of 30 days or less under 45 C.F.R. § 1303.12(a)(5) and that meeting has not yet been held (in which case the hearing may not start until the informal process is completed or the time for its completion as set forth in the regulations has elapsed).
• ACYF will not request a delay in the hearing except in situations where circumstances beyond its control justify such a request. Examples of such circumstances are serious illness or sudden disability of personnel essential to the presentation of ACYF's case, or of members of their families, or closure of government offices.
• The parties may agree to a telephone hearing in lieu of all or part of an in-person, evidentiary hearing or may agree that the appeal can be decided on the written record without an evidentiary hearing.
• Within approximately two weeks after the close of the record for the appeal, the Board will rule in writing to uphold or reverse the suspension, issuing either a summary decision or a decision containing a full articulation of the rationale. If the Board issues a summary decision, it will issue a complete decision at a later date.
• If a suspension on which the grantee has requested an expedited hearing merges with a termination or denial of refunding, the Board will issue at least a summary decision on the suspension before commencing proceedings on the termination or denial of refunding.
• If the Board reverses a suspension, the Board may still decide that the same grounds that it found were not legally sufficient to support the extraordinary remedy of summary suspension do support a termination or denial of refunding (unless the Board finds that the grounds have not been proved by ACYF, or that if proved they do not support the proposed action). Conversely, if the Board upholds the summary suspension, and the grounds for summary suspension also constitute some or all of the grounds for termination or denial of refunding, ACF may request that the Board summarily uphold the latter actions on the same grounds.

ACYF wishes to emphasize that grantees must request a hearing within five days of the receipt of notice of summary suspensions issued for more than 30 days. Moreover, where the summary suspension was not issued initially for more than 30 days, but it continues for more than 30 days grantees must file their appeals with the Board no later than five days after the date the suspension has been in effect for 30 days.

/S/
Helen H. Taylor
Associate Commissioner
Head Start Bureau