34 C.F.R. Subpart E—Enforcement and Appeals Procedures
Title 34 - Education
(a) If the Secretary determines that any center receiving funds under this part is not in compliance with the standards and assurances in section 725 (b) and (c) of the Act and subparts F and G of this part, the Secretary immediately notifies the center, by certified mail, return receipt requested, or other means that provide proof of receipt, that the center is out of compliance. The Secretary also offers technical assistance to the center to develop a corrective action plan to comply with the standards and assurances. (b) The Secretary terminates all funds under section 721 of the Act to that center 90 days after the date of the notification required by paragraph (a) of this section unless— (1) The center submits, within 90 days after receiving the notification required by paragraph (a) of this section, a corrective action plan to achieve compliance that is approved by the Secretary; or (2) The center requests a hearing pursuant to paragraph (c) or (d) of this section. (c) If the Secretary does not approve a center's corrective action plan submitted pursuant to paragraph (b)(1) of this section, the center has 30 days from receipt of the Secretary's written notice of disapproval of the center's corrective action plan to request a hearing by submitting a formal written request that gives the reasons why the center believes that the Secretary should have approved the center's corrective action plan. (d) If the center does not submit a corrective action plan to the Secretary, the center has 90 days after receiving the notification required by paragraph (a) of this section to request a hearing by submitting a formal written request that gives the reasons why the center believes that the Secretary should have found the center in compliance with the standards and assurances in section 725 (b) and (c) of the Act and subparts F and G of this part. (e) The date of filing a formal written request for a hearing to the Secretary under paragraph (c) or (d) of this section is determined in a manner consistent with the requirements of 34 CFR 81.12. (f) The Secretary issues a written decision to terminate funds to the center if, after providing reasonable notice and an opportunity for a hearing, the Secretary finds that— (1) The center receiving funds under this part is not in compliance with the standards and assurances in section 725 (b) and (c) of the Act and subparts F and G of this part; or (2) The center's corrective action plan submitted under paragraph (b)(1) of this section cannot be approved. (g) The Secretary's decision to terminate funds to a center pursuant to paragraph (f) of this section takes effect upon issuance. (Authority: 29 U.S.C. 711(c) and 796f–1(g)) (a) If the Director determines that any center receiving funds under this part is not in compliance with the standards and assurances in section 725 (b) and (c) of the Act and subparts F and G of this part, the Director shall immediately provide the center, by certified mail, return receipt requested, or other means that provide proof of receipt, with an initial written notice that the center is out of compliance with the standards and assurances and that the Director will terminate the center's funds or take other proposed significant adverse action against the center 90 days after the center's receipt of this initial written notice. The Director shall provide technical assistance to the center to develop a corrective action plan to comply with the standards and assurances. (b) Unless the center submits, within 90 days after receiving the notification required by paragraph (a) of this section, a corrective action plan to achieve compliance that is approved by the Director or, if appealed, by the Secretary, the Director shall terminate all funds under section 723 of the Act to a center 90 days after the later of— (1) The date that the center receives the initial written notice required by paragraph (a) of this section; or (2) The date that the center receives the Secretary's final decision issued pursuant to §366.46(c) if— (i) The center files a formal written appeal of the Director's final written decision pursuant to §366.44(a); or (ii) The center files a formal written appeal of the decision described in the Director's initial written notice pursuant to §366.44(b). (Authority: 29 U.S.C. 711(c) and 796f–2(g) and (i)) The initial written notice required by §366.40(a) must— (a) Include, at a minimum, the following: (1) The name of the center. (2) The reason or reasons for proposing the termination of funds or other significant adverse action against the center, including any evidence that the center has failed to comply with any of the evaluation standards or assurances in section 725(b) and (c) of the Act and subparts F and G of this part. (3) The effective date of the proposed termination of funds or other significant adverse action against the center; (b) Be given 90 days in advance of the date the Director intends to terminate a center's funds or take any other significant adverse action against the center; (c) Inform the center that it has 90 days from the date the center receives the notice to submit a corrective action plan; (d) Inform the center that it may seek mediation and conciliation in accordance with §366.40(a) to resolve any dispute with the Director within the 90 days before the proposed termination of funds or other significant adverse action against the center; and (e) Inform the center that, if mediation and conciliation are not successful and the Director does not issue a final written decision pursuant to §366.42, the center may appeal to the Secretary the decision described in the Director's initial written notice on or after the 90th day, but not later than the 120th day, after the center receives the Director's initial decision. (Authority: 29 U.S.C. 711(c) and 796f–2 (g) and (i)) (a) If the center submits a corrective action plan in accordance with §366.40(b), the Director shall provide to the center, not later than the 120th day after the center receives the Director's initial written notice, a final written decision approving or disapproving the center's corrective action plan and informing the center, if appropriate, of the termination of the center's funds or any other proposed significant adverse action against the center. (b) The Director shall send the final written decision to the center by registered or certified mail, return receipt requested, or other means that provide a record that the center received the Director's final written decision. (c) A Director's final written decision to terminate funds or take any other adverse action against a center may not take effect until 30 days after the date that the center receives it. (d) If a center appeals pursuant to §366.44(a), the Director's final written decision to terminate funds or take any other adverse action against a center does not take effect until the Secretary issues a final decision. (Authority: 29 U.S.C. 711(c) and 796f–2 (g) and (i)) The Director's final written decision to disapprove a center's corrective action plan required by §366.42 must— (a) Address any response from the center to the Director's initial written notice to terminate funds or take other significant adverse action against the center; (b) Include a statement of the reasons why the Director could not approve the corrective action plan; and (c) Inform the center of its right to appeal to the Secretary the Director's final written decision to terminate funds or take any other significant adverse action against the center. (Authority: 29 U.S.C. 711(c) and 796f–2 (g) and (i)) (a) To obtain the Secretary's review of a Director's final written decision to disapprove a center's corrective action plan submitted pursuant to §366.40(b), the center shall file, within 30 days from receipt of the Director's final written decision, a formal written appeal with the Secretary giving the reasons why the center believes that the Director should have approved the center's corrective action plan. (Cross-reference: See §366.42.) (b) To obtain the Secretary's review of a decision described in a Director's initial written notice, a center that does not submit a corrective action plan to a Director shall file, in accordance with paragraph (c)(1)(i) of this section, a formal written appeal with the Secretary giving the reasons why the center believes that the Director should have found the center in compliance with the standards and assurances in section 725 (b) and (c) of the Act and subparts F and G of this part. (c) To appeal to the Secretary a decision described in a Director's initial written notice or a Director's final written decision to disapprove a center's corrective action plan and to terminate or take other significant adverse action, a center shall file with the Secretary— (1) A formal written appeal— (i) On or after the 90th day but not later than the 120th day following a center's receipt of a Director's initial written notice; or (ii) On or before the 30th day after a center's receipt of the Director's final written decision to disapprove a center's corrective action plan and to terminate or take other significant adverse action; (2) A copy of the corrective action plan, if any, submitted to the Director; and (3) One copy each of any other written submissions sent to the Director in response to the Director's initial written notice to terminate funds or take other significant adverse action against the center. (d) The date of filing a formal written appeal to the Secretary under paragraph (c) of this section is determined in a manner consistent with the requirements of 34 CFR 81.12. (e) If the center files a formal written appeal with the Secretary, the center shall send a separate copy of this appeal to the Director by registered or certified mail, return receipt requested, or other means that provide a record that the Director received a separate copy of the center's written appeal. (f) The center's formal written appeal to the Secretary must state why— (1) The Director has not met the burden of showing that the center is not in compliance with the standards and assurances in section 725 (b) and (c) of the Act and in subparts F and G of this part; (2) The corrective action plan, if any, should have been approved; or (3) The Director has not met the procedural requirements of §§366.40 through 366.45. (g) As part of its submissions under this section, the center may request an informal meeting with the Secretary at which representatives of both parties will have an opportunity to present their views on the issues raised in the appeal. (h) A Director's decision to terminate funds that is described in an initial written notice or final written decision is stayed as of the date (determined pursuant to paragraph (d) of this section) that the center files a formal written appeal with the Secretary. (Authority: 29 U.S.C. 711(c) and 796f–2(g)(2) and (i)) (a) If the center files a formal written appeal in accordance with §366.44(c), the Director shall, within 15 days of receipt of the center's appeal, submit to the Secretary one copy each of the following: (1) The Director's initial written notice to terminate funds or take any other significant adverse action against the center sent to the center. (2) The Director's final written decision, if any, to disapprove the center's corrective action plan and to terminate the center's funds or take any other significant adverse action against the center. (3) Any other written documentation or submissions the Director wishes the Secretary to consider. (4) Any other information requested by the Secretary. (b) As part of its submissions under this section, the Director may request an informal meeting with the Secretary at which representatives of both parties will have an opportunity to present their views on the issues raised in the appeal. (Authority: 29 U.S.C. 711(c) and 796f–2(g)(2) and (i)) (a) If either party requests a meeting under §§366.44(g) or 366.45(b), the meeting is to be held within 30 days of the date of the Secretary's receipt of the submissions from the Director that are required by §366.45(a). The Secretary promptly notifies the parties of the date and place of the meeting. (b) Within 30 days of the informal meeting permitted under paragraph (a) of this section or, if neither party has requested an informal meeting, within 60 days of the date of receipt of the submissions required from the Director by §366.45(a), the Secretary issues to the parties the Secretary's decision. (c) The Secretary reviews a decision included in a Director's initial written notice or a Director's final written decision to disapprove the center's corrective action plan and to terminate the center's funds or take any other significant adverse action against the center based on the record submitted under §§366.44 and 366.45 and may affirm or, if the Secretary finds that the decision included in a Director's initial written notice or a Director's final written decision is not supported by the evidence or is not in accordance with the law, may— (1) Remand the appeal for further findings; or (2) Reverse the decision described in the Director's initial written notice or the Director's final written decision to disapprove the center's corrective action plan and to terminate funds or take any other significant adverse action against the center. (d) The Secretary sends copies of his or her decision to the parties by registered or certified mail, return receipt requested, or other means that provide a record of receipt by both parties. (e) If the Secretary affirms the decision described in a Director's initial written notice or the Director's final written decision, the Director's decision takes effect on the date of the Secretary's final decision to affirm. (Authority: 29 U.S.C. 711(c) and 796f–2(g)(2) and (i))
Title 34: Education
PART 366—CENTERS FOR INDEPENDENT LIVING
Subpart E—Enforcement and Appeals Procedures
§ 366.39 What procedures does the Secretary use for enforcement?
§ 366.40 How does the Director initiate enforcement procedures?
§ 366.41 What must be included in an initial written notice from the Director?
§ 366.42 When does a Director issue a final written decision?
§ 366.43 What must be included in the Director's final written decision?
§ 366.44 How does a center appeal a decision included in a Director's initial written notice or a Director's final written decision?
§ 366.45 What must a Director do upon receipt of a copy of a center's formal written appeal to the Secretary?
§ 366.46 How does the Secretary review a center's appeal of a decision included in a Director's initial written notice or a Director's final written decision?
