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EDGAR Part 86 (Drug and Alcohol Abuse Prevention)-Subpart A (General)

TITLE 34--Education

               PART 86_DRUG AND ALCOHOL ABUSE PREVENTION
 
                          Subpart A_General
 Sec.
86.1 What is the purpose of the Drug and Alcohol Abuse Prevention regulations?
86.2 What Federal programs are covered by this part?
86.3 What actions shall an IHE take to comply with the requirements of this part?
86.4 What are the procedures for submitting a drug prevention program certification?
86.5 What are the consequences if an IHE fails to submit a drug prevention program certification?
86.6 When must an IHE submit a drug prevention program certification?
86.7 What definitions apply to this part?
 
               Subpart B_Institutions of Higher Education
 
86.100 What must the IHE's drug prevention program include?
86.101 What review of IHE drug prevention programs does the Secretary conduct?
86.102 What is required of an IHE that the Secretary selects for annual review?
86.103 What records and information must an IHE make available to the Secretary 
and the public concerning its drug prevention program?
 
Subpart C [Reserved]
 
Subpart D_Responses and Sanctions Issued or Imposed by the Secretary for Violations by an IHE
 
86.300 What constitutes a violation of this part by an IHE?
86.301 What actions may the Secretary take if an IHE violates this part?
86.302 What are the procedures used by the Secretary for providing 
information or technical assistance?
86.303 What are the procedures used by the Secretary for issuing a response 
other than the formulation of a compliance 
agreement or the provision of information or technical assistance?
86.304 What are the procedures used by the Secretary to demand repayment 
of Federal financial assistance or terminate an IHE's eligibility for any or all forms 
of Federal financial assistance?
 
                       Subpart E_Appeal Procedures
 
86.400 What is the scope of this subpart?
86.401 What are the authority and responsibility of the ALJ?
86.402 Who may be a party in a hearing under this subpart?
86.403 May a party be represented by counsel?
86.404 How may a party communicate with an ALJ?
86.405 What are the requirements for filing written submissions?
86.406 What must the ALJ do if the parties enter settlement negotiations?
86.407 What are the procedures for scheduling a hearing?
86.408 What are the procedures for conducting a pre-hearing conference?
86.409 What are the procedures for conducting a hearing on the record?
86.410 What are the procedures for issuance of a decision?
86.411 What are the procedures for requesting reinstatement of eligibility?
 
    Authority: 20 U.S.C. 1145g, unless otherwise noted.
 
    Source: 55 FR 33581, Aug. 16, 1990, unless otherwise noted.
 
                            Subpart A_General---Back to index
 
Sec. 86.1  What is the purpose of the Drug and Alcohol Abuse Prevention
          regulations?   Back to index
 
    The purpose of the Drug and Alcohol Abuse Prevention regulations is
to implement section 22 of the Drug-Free Schools and Communities Act
Amendments of 1989, which added section 1213 to the Higher Education
Act. These amendments require that, as a condition of receiving funds or
any other form of financial assistance under any Federal program, an
institution of higher education (IHE) must certify that it has adopted
and implemented a drug prevention program as described in this part.
 
(Authority: 20 U.S.C. 1145g)
 
[61 FR 66225, Dec. 17, 1996]
 
Sec. 86.2  What Federal programs are covered by this part?   Back to index
 
    The Federal programs covered by this part include--
    (a) All programs administered by the Department of Education under
which an IHE may receive funds or any other form of Federal financial
assistance; and
    (b) All programs administered by any other Federal agency under
which an IHE may receive funds or any other form of Federal financial
assistance.
 
(Authority: 20 U.S.C. 1145g)
 
[55 FR 33581, Aug. 16, 1990, as amended at 61 FR 66225, Dec. 17, 1996]
 
Sec. 86.3  What actions shall an IHE take to comply with the
          requirements of this part?   Back to index
 
    (a) An IHE shall adopt and implement a drug prevention program as
described in Sec. 86.100 to prevent the unlawful possession, use, or
distribution of illicit drugs and alcohol by all students and employees
on school premises or as part of any of its activities.
    (b) An IHE shall provide a written certification that it has adopted
and implemented the drug prevention program described in Sec. 86.100.
 
(Approved by the Office of Management and Budget under control number
1880-0522)
 
(Authority: 20 U.S.C. 1145g)
 
[55 FR 33581, Aug. 16, 1990, as amended at 61 FR 66225, 66226, Dec. 17,
1996]
 
Sec. 86.4  What are the procedures for submitting a drug prevention
          program certification?   Back to index
 
    An IHE shall submit to the Secretary the drug prevention program
certification required by Sec. 86.3(b).
 
(Approved by the Office of Management and Budget under control number
1880-0522)
 
(Authority: 20 U.S.C. 1145g)
 
[55 FR 33581, Aug. 16, 1990, as amended at 61 FR 66226, Dec. 17, 1996]
 
Sec. 86.5  What are the consequences if an IHE fails to submit a drug
          prevention program certification?   Back to index
 
    (a) An IHE that fails to submit a drug prevention program
certification is not eligible to receive funds or any other form of
financial assistance under any Federal program.
    (b) The effect of loss of eligibility to receive funds or any other
form of Federal financial assistance is determined by the statute and
regulations governing the Federal programs under which an IHE receives
or desires to receive assistance.
 
(Authority: 20 U.S.C. 1145g)
 
[55 FR 33581, Aug. 16, 1990, as amended at 61 FR 66225, Dec. 17, 1996]
 
Sec. 86.6  When must an IHE submit a drug prevention program
          certification?   Back to index
 
    (a) After October 1, 1990, except as provided in paragraph (b) of
this section, an IHE is not eligible to receive funds or any other form
of financial assistance under any Federal program until the IHE has
submitted a drug prevention program certification.
    (b)(1) The Secretary may allow an IHE until not later than April 1,
1991, to submit the drug prevention program certification, only if the
IHE establishes that it has a need, other than administrative
convenience, for more time to adopt and implement its drug prevention
program.
    (2) An IHE that wants to receive an extension of time to submit its
drug prevention program certification shall submit a written
justification to the Secretary that--
    (i) Describes each part of its drug prevention program, whether in
effect or planned;
    (ii) Provides a schedule to complete and implement its drug
prevention program; and
    (iii) Explains why it has a need, other than administrative
convenience, for more time to adopt and implement its drug prevention
program.
    (3) An IHE shall submit a request for an extension to the Secretary.
 
(Approved by the Office of Management and Budget under control number
1880-0522)
 
(Authority: 20 U.S.C. 1145g)
 
[55 FR 33581, Aug. 16, 1990, as amended at 61 FR 66226, Dec. 17, 1996]
 
Sec. 86.7  What definitions apply to this part?   Back to index
 
    (a) Definitions in EDGAR. The following terms used in this part are
defined in 34 CFR part 77:
 
Department EDGAR Secretary   Back to index
    (b) Other definitions. The following terms used in this part are
defined as follows:
    Compliance agreement means an agreement between the Secretary and an
IHE that is not in full compliance with its drug prevention program
certification. The agreement specifies the steps the IHE will take to
comply fully with its drug prevention program certification, and
provides a schedule for the accomplishment of those steps. A compliance
agreement does not excuse or remedy past violations of this part.
    Institution of higher education means--
    (1) An institution of higher education, as defined in 34 CFR 600.4;
    (2) A proprietary institution of higher education, as defined in 34
CFR 600.5;
    (3) A postsecondary vocational institution, as defined in 34 CFR
600.6; and
    (4) A vocational school, as defined in 34 CFR 600.7.
 
(Authority: 20 U.S.C. 1145g)
 
[55 FR 33581, Aug. 16, 1990, as amended at 61 FR 66226, Dec. 17, 1996]

EDGAR Part 86 Subpart B (Institutions of Higher Education), Subpart C [Reserved]\

Subpart B_Institutions of Higher Education---Back to index

 
Sec. 86.100  What must the IHE's drug prevention program include?
 
    The IHE's drug prevention program must, at a minimum, include the
following:
    (a) The annual distribution in writing to each employee, and to each
student who is taking one or more classes for any type of academic
credit except for continuing education units, regardless of the length
of the student's program of study, of--
    (1) Standards of conduct that clearly prohibit, at a minimum, the
unlawful possession, use, or distribution of illicit drugs and alcohol
by students and employees on its property or as part of any of its
activities;
    (2) A description of the applicable legal sanctions under local,
State, or Federal law for the unlawful possession or distribution of
illicit drugs and alcohol;
    (3) A description of the health risks associated with the use of
illicit drugs and the abuse of alcohol;
    (4) A description of any drug or alcohol counseling, treatment, or
rehabilitation or re-entry programs that are available to employees or
students; and
    (5) A clear statement that the IHE will impose disciplinary
sanctions on students and employees (consistent with local, State, and
Federal law), and a description of those sanctions, up to and including
expulsion or termination of employment and referral for prosecution, for
violations of the standards of conduct required by paragraph (a)(1) of
this section. For the purpose of this section, a disciplinary sanction
may include the completion of an appropriate rehabilitation program.
    (b) A biennial review by the IHE of its program to--
    (1) Determine its effectiveness and implement changes to the program
if they are needed; and
    (2) Ensure that the disciplinary sanctions described in paragraph
(a)(5) of this section are consistently enforced.
 
(Approved by the Office of Management and Budget under control number
1880-0522)
 
(Authority: 20 U.S.C. 1145g)
 
Sec. 86.101  What review of IHE drug prevention programs does the
          Secretary conduct?       --Back to index
 
    The Secretary annually reviews a representative sample of IHE drug
prevention programs.
 
(Authority: 20 U.S.C. 1145g)
 
Sec. 86.102  What is required of an IHE that the Secretary selects for
          annual review?       --Back to index
 
    If the Secretary selects an IHE for review under Sec. 86.101, the
IHE shall provide the Secretary access to personnel, records, documents
and any other necessary information requested by the Secretary to review
the IHE's adoption and implementation of its drug prevention program.
 
(Approved by the Office of Management and Budget under control number
1880-0522)
 
(Authority: 20 U.S.C. 1145g)
 
Sec. 86.103  What records and information must an IHE make available to
          the Secretary and the public concerning its drug prevention
          program?       --Back to index
 
    (a) Each IHE that provides the drug prevention program certification
required by Sec. 86.3(b) shall, upon request, make available to the
Secretary and the public a copy of each item required by Sec. 86.100(a)
as well as the results of the biennial review required by Sec.
86.100(b).
    (b)(1) An IHE shall retain the following records for three years
after the fiscal year in which the record was created:
    (i) The items described in paragraph (a) of this section.
    (ii) Any other records reasonably related to the IHE's compliance
with the drug prevention program certification.
    (2) If any litigation, claim, negotiation, audit, review, or other
action involving the records has been started before expiration of the
three-year period, the IHE shall retain the records until completion of
the action and resolution of all issues that arise from it, or until the
end of the regular three-year period, whichever is later.
 
(Approved by the Office of Management and Budget under control number
1880-0522)
 
(Authority: 20 U.S.C. 1145g)
 
 
Subpart C [Reserved]

EDGAR Part 86 Subpart D (Responses/Sanctions Issued/Imposed by the Secretary for Violations by an IHE)

 Subpart D_Responses and Sanctions Issued or Imposed by the Secretary for Violations by an IHE---Back to index

 
Sec. 86.300  What constitutes a violation of this part by an IHE?
 
    An IHE violates this part by--
    (a) Receiving any form of Federal financial assistance after
becoming ineligible to receive that assistance because of failure to
submit a certification in accordance with Sec. 86.3(b); or
    (b) Violating its certification. Violation of a certification
includes failure of an IHE to--
    (1) Adopt or implement its drug prevention program; or
    (2) Consistently enforce its disciplinary sanctions for violations
by students and employees of the standards of conduct adopted by an IHE
under Sec. 86.100(a)(1).
 
(Authority: 20 U.S.C. 1145g)
 
[55 FR 33581, Aug. 16, 1990, as amended at 61 FR 66226, Dec. 17, 1996]
 
Sec. 86.301  What actions may the Secretary take if an IHE violates
          this part?      ---Back to index
 
    (a) If an IHE violates its certification, the Secretary may issue a
response to the IHE. A response may include, but is not limited to--
    (1) Provision of information and technical assistance; and
    (2) Formulation of a compliance agreement designed to bring the IHE
into full compliance with this part as soon as feasible.
    (b) If an IHE receives any form of Federal financial assistance
without having submitted a certification or violates its certification,
the Secretary may impose one or more sanctions on the IHE, including--
    (1) Repayment of any or all forms of Federal financial assistance
received by the IHE when it was in violation of this part; and
    (2) The termination of any or all forms of Federal financial
assistance that--
    (i)(A) Except as specified in paragraph (b)(2)(ii) of this section,
ends an IHE's eligibility to receive any or all forms of Federal
financial assistance. The Secretary specifies which forms of Federal
financial assistance would be affected; and
    (B) Prohibits an IHE from making any new obligations against Federal
funds; and
    (ii) For purposes of an IHE's participation in the student financial
assistance programs authorized by title IV of the Higher Education Act
of 1965 as amended, has the same effect as a termination under 34 CFR
668.94.
 
(Authority: 20 U.S.C. 1145g)
 
[55 FR 33581, Aug. 16, 1990, as amended at 61 FR 66225, Dec. 17, 1996]
 
Sec. 86.302  What are the procedures used by the Secretary for
          providing information or technical assistance?     ---Back to index 
    (a) The Secretary provides information or technical assistance to an
IHE in writing, through site visits, or by other means.
    (b) The IHE shall inform the Secretary of any corrective action it
has taken within a period specified by the Secretary.
 
(Authority: 20 U.S.C. 1145g)
 
[55 FR 33581, Aug. 16, 1990, as amended at 61 FR 66225, Dec. 17, 1996]
 
Sec. 86.303  What are the procedures used by the Secretary for issuing
          a response other than the formulation of a compliance
          agreement or the provision of information or technical
          assistance?     ---Back to index
 
    (a) If the Secretary intends to issue a response other than the
formulation of a compliance agreement or the provision of information or
technical assistance, the Secretary notifies the IHE in writing of--
    (1) The Secretary's determination that there are grounds to issue a
response other than the formulation of a compliance agreement or
providing information or technical assistance; and
    (2) The response the Secretary intends to issue.
    (b) An IHE may submit written comments to the Secretary on the
determination under paragraph (a)(1) of this section and the intended
response under paragraph (a)(2) of this section within 30 days after the
date the IHE receives the notification of the Secretary's intent to
issue a response.
    (c) Based on the initial notification and the written comments of
the IHE the Secretary makes a final determination and, if appropriate,
issues a final response.
    (d) The IHE shall inform the Secretary of the corrective action it
has taken in order to comply with the terms of the Secretary's response
within a period specified by the Secretary.
    (e) If an IHE does not comply with the terms of a response issued by
the Secretary, the Secretary may issue an additional response or impose
a sanction on the IHE in accordance with the procedures in Sec. 86.304.
 
(Authority: 20 U.S.C. 1145g)
 
[55 FR 33581, Aug. 16, 1990, as amended at 61 FR 66225, Dec. 17, 1996]
 
Sec. 86.304  What are the procedures used by the Secretary to demand
          repayment of Federal financial assistance or terminate an
          IHE's eligibility for any or all forms of Federal financial
          assistance?     ---Back to index
 
    (a) A designated Department official begins a proceeding for
repayment of Federal financial assistance or termination, or both, of an
IHE's eligibility for any or all forms of Federal financial assistance
by sending the IHE a notice by certified mail with return receipt
requested. This notice--
    (1) Informs the IHE of the Secretary's intent to demand repayment of
Federal financial assistance or to terminate, describes the consequences
of that action, and identifies the alleged violations that constitute
the basis for the action;
    (2) Specifies, as appropriate--
    (i) The amount of Federal financial assistance that must be repaid
and the date by which the IHE must repay the funds; and
    (ii) The proposed effective date of the termination, which must be
at least 30 days after the date of receipt of the notice of intent; and
    (3) Informs the IHE that the repayment of Federal financial
assistance will not be required or that the termination will not be
effective on the date specified in the notice if the designated
Department official receives, within a 30-day period beginning on the
date the IHE receives the notice of intent described in this paragraph--
    (i) Written material indicating why the repayment of Federal
financial assistance or termination should not take place; or
    (ii) A request for a hearing that contains a concise statement of
disputed issues of law and fact, the IHE's position with respect to
these issues, and, if appropriate, a description of which Federal
financial assistance the IHE contends need not be repaid.
    (b) If the IHE does not request a hearing but submits written
material--
    (1) The IHE receives no additional opportunity to request or receive
a hearing; and
    (2) The designated Department official, after considering the
written material, notifies the IHE in writing whether--
    (i) Any or all of the Federal financial assistance must be repaid;
or
    (ii) The proposed termination is dismissed or imposed as of a
specified date.
 
(Authority: 20 U.S.C. 1145g)
 
[55 FR 33581, Aug. 16, 1990, as amended at 61 FR 66225, Dec. 17, 1996]

EDGAR Part 86 Subpart E (Appeal Procedures)

                        Subpart E_Appeal Procedures---Back to index
 
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?    
--Back to index
 
    (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?      -Back to index
 
    (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?      -Back to index
 
    A party may be represented by counsel.
 
(Authority: 20 U.S.C. 1145g)
 
Sec. 86.404  How may a party communicate with an ALJ?      -Back to index
 
    (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?      -Back to index
 
    (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?      -Back to index
 
    (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?      -Back to index
 
    (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?      -Back to index
 
    (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?      -Back to index
 
    (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?      -Back to index
 
    (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?      -Back to index
 
    (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]
 
 

 


 

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