§ 1234b. — Measure of recovery.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 20USC1234b]
TITLE 20--EDUCATION
CHAPTER 31--GENERAL PROVISIONS CONCERNING EDUCATION
SUBCHAPTER IV--ENFORCEMENT
Sec. 1234b. Measure of recovery
(a) Amount returned proportionate to extent of harm violation caused to
an identifiable Federal interest; reduction; determination of
identifiable Federal interest
(1) A recipient determined to have made an unallowable expenditure,
or to have otherwise failed to discharge its responsibility to account
properly for funds, shall be required to return funds in an amount that
is proportionate to the extent of the harm its violation caused to an
identifiable Federal interest associated with the program under which
the recipient received the award. Such amount shall be reduced in whole
or in part by an amount that is proportionate to the extent the
mitigating circumstances caused the violation.
(2) For the purpose of paragraph (1), an identifiable Federal
interest includes, but is not limited to, serving only eligible
beneficiaries; providing only authorized services or benefits; complying
with expenditure requirements and conditions (such as set-aside, excess
cost, maintenance of effort, comparability, supplement-not-supplant, and
matching requirements); preserving the integrity of planning,
application, recordkeeping, and reporting requirements; and maintaining
accountability for the use of funds.
(b) Reduction or waiver of amount based on mitigating circumstances;
burden of proof; determination of mitigating circumstances;
weight, etc., of written request for guidance
(1) When a State or local educational agency is determined to have
made an unallowable expenditure, or to have otherwise failed to
discharge its responsibility to account properly for funds, and
mitigating circumstances exist, as described in paragraph (2), the judge
shall reduce such amount by an amount that is proportionate to the
extent the mitigating circumstances caused the violation. Furthermore,
the judge is authorized to determine that no recovery is justified when
mitigating circumstances warrant. The burden of demonstrating the
existence of mitigating circumstances shall be upon the State or local
educational agency.
(2) For the purpose of paragraph (1), mitigating circumstances exist
only when it would be unjust to compel the recovery of funds because the
State or local educational agency--
(A) actually and reasonably relied upon erroneous written
guidance provided by the Department;
(B) made an expenditure or engaged in a practice after--
(i) the State or local educational agency submitted to the
Secretary, in good faith, a written request for guidance with
respect to the expenditure or practice at issue, and
(ii) a Department official did not respond within 90 days of
receipt by the Department of such request; or
(C) actually and reasonably relied upon a judicial decree issued
to the recipient.
(3) A written request for guidance as described in paragraph (2)
sent by certified mail (return receipt requested) shall be conclusive
proof of receipt by the Department.
(4) If the Secretary responds to a written request for guidance
described in paragraph (2)(B) more than 90 days after its receipt, the
State or local educational agency that submitted the request shall
comply with the guidance received at the earliest practicable time.
(5) In order to demonstrate the existence of the mitigating
circumstances described in paragraph (2)(B), the State or local
educational agency shall demonstrate that--
(A) the written request for guidance accurately described the
proposed expenditure or practice and included the facts necessary
for a determination of its legality; and
(B) the written request for guidance contained a certification
by the chief legal officer of the State educational agency that such
officer had examined the proposed expenditure or practice and
believed the proposed expenditure or practice was permissible under
then applicable State and Federal law; and
(C) the State or local educational agency reasonably believed
that the proposed expenditure or practice was permissible under then
applicable State and Federal law.
(6) The Secretary shall disseminate to State educational agencies
responses to written requests for guidance, described in paragraph (5),
that reflect significant interpretations of applicable law or policy.
(c) Review of written requests for guidance on periodic basis
The Secretary shall periodically review the written requests for
guidance submitted under this section to determine the need for new or
supplementary regulatory or other guidance under applicable programs.
(Pub. L. 90-247, title IV, Sec. 453, as added Pub. L. 95-561, title XII,
Sec. 1232, Nov. 1, 1978, 92 Stat. 2349; amended Pub. L. 100-297, title
III, Sec. 3501(a), Apr. 28, 1988, 102 Stat. 353.)
Amendments
1988--Pub. L. 100-297 amended section generally, substituting
provisions relating to measure of recovery for provisions relating to
withholdings. See section 1234d of this title.
Effective Date of 1988 Amendment
Amendment by Pub. L. 100-297 effective 180 days after Apr. 28, 1988,
but not applicable to recipients receiving written notice to return
funds prior to that date, see section 3501(b) of Pub. L. 100-297, set
out as a note under section 1234 of this title.
Section Referred to in Other Sections
This section is referred to in section 1234a of this title.
