§ 76.401 Disapproval of an application—opportunity for a hearing.
(a) State agency hearing before disapproval. Under the programs listed in the chart below, the State agency that administers the program shall provide an applicant with notice and an opportunity for a hearing before it may disapprove the application.
| Program | Authorizing statute | Implementing regulations Title 34 CFR Part |
|---|---|---|
| Chapter 1, Program in Local Educational Agencies | Title I, Chapter 1, Elementary and Secondary Education Act of 1965, as amended (20 U.S.C. 2701–2731, 2821–2838, 2851–2854, and 2891–2901) | 200 |
| Chapter 1, Program for Neglected and Delinquent Children | Title 1, Chapter 1, Elementary and Secondary Education Act of 1965, as amended (20 U.S.C. 2801–2804) | 203 |
| State Grants for Strengthening Instruction in Mathematics and Science | Title II, Part A, Elementary and Secondary Education Act of 1965, as amended (20 U.S.C. 2981–2993) | 208 |
| Federal, State, and Local Partnership for Educational Improvement | Title I, Chapter 2, Elementary and Secondary Education Act of 1965, as amended (20 U.S.C. 2911–2952 and 2971–2976) | 298 |
| Assistance to States for Education of Handicapped Children | Part B, Individuals with Disabilities Education Act (except Section 619) (20 U.S.C. 1411–1420) | 300 |
| Preschool Grants | Section 619, Individuals with Disabilities Education Act (20 U.S.C. 1419) | 301 |
| Chapter 1, State-Operated or Supported Programs for Handicapped Children | Title 1, Chapter 1, Elementary and Secondary Education Act of 1965, as amended (20 U.S.C. 2791–2795) | 302 |
| Transition Program for Refugee Children | Section 412(d), Immigration and Naturalization Act (8 U.S.C. 1522(d)) | 538 |
| Emergency Immigrant Education Program | Emergency Immigrant Education Act (20 U.S.C. 3121–3130) | 581 |
| Financial Assistance for Construction, Reconstruction, or Renovation of Higher Education Facilities | Section 711, Higher Education Act of 1965 (20 U.S.C. 1132b) | 617 |
(b) Other programs—hearings not required. Under other programs covered by this part, a State agency—other than a State educational agency—is not required to provide an opportunity for a hearing regarding the agency's disapproval of an application.
(c) If an applicant for a subgrant alleges that any of the following actions of a State educational agency violates a State or Federal statute or regulation, the State educational agency and the applicant shall use the procedures in paragraph (d) of this section:
(1) Disapproval of or failure to approve the application or project in whole or in part.
(2) Failure to provide funds in amounts in accordance with the requirements of statutes and regulations.
(d) State educational agency hearing procedures.
(1) If the applicant applied under a program listed in paragraph (a) of this section, the State educational agency shall provide an opportunity for a hearing before the agency disapproves the application.
(2) If the applicant applied under a program not listed in paragraph (a) of this section, the State educational agency shall provide an opportunity for a hearing either before or after the agency disapproves the application.
(3) The applicant shall request the hearing within 30 days of the action of the State educational agency.
(4)
(i) Within 30 days after it receives a request, the State educational agency shall hold a hearing on the record and shall review its action.
(ii) No later than 10 days after the hearing the agency shall issue its written ruling, including findings of fact and reasons for the ruling.
(iii) If the agency determines that its action was contrary to State or Federal statutes or regulations that govern the applicable program, the agency shall rescind its action.
(5) If the State educational agency does not rescind its final action after a review under this paragraph, the applicant may appeal to the Secretary. The applicant shall file a notice of the appeal with the Secretary within 20 days after the applicant has been notified by the State educational agency of the results of the agency's review. If supported by substantial evidence, findings of fact of the State educational agency are final.
(6)
(i) The Secretary may also issue interim orders to State educational agencies as he or she may decide are necessary and appropriate pending appeal or review.
(ii) If the Secretary determines that the action of the State educational agency was contrary to Federal statutes or regulations that govern the applicable program, the Secretary issues an order that requires the State educational agency to take appropriate action.
(7) Each State educational agency shall make available at reasonable times and places to each applicant all records of the agency pertaining to any review or appeal the applicant is conducting under this section, including records of other applicants.
(8) If a State educational agency does not comply with any provision of this section, or with any order of the Secretary under this section, the Secretary terminates all assistance to the State educational agency under the applicable program or issues such other orders as the Secretary deems appropriate to achieve compliance.
(e) Other State agency hearing procedures. State agencies that are required to provide a hearing under paragraph (a) of this section—other than State educational agencies—are not required to use the procedures in paragraph (d) of this section.
This section is based on a provision in the General Education Provisions Act (GEPA). Section 427 of the Department of Education Organization Act (DEOA), 20 U.S.C. 3487, provides that except to the extent inconsistent with the DEOA, the GEPA “shall apply to functions transferred by this Act to the extent applicable on the day preceding the effective date of this Act.” Although standardized nomenclature is used in this section to reflect the creation of the Department of Education, there is no intent to extend the coverage of the GEPA beyond that authorized under Section 427 or other applicable law.
[45 FR 22517, Apr. 3, 1980. Redesignated at 45 FR 77368, Nov. 21, 1980, as amended at 45 FR 86296, Dec. 30, 1980; 50 FR 43545, Oct. 25, 1985; 52 FR 27805, July 24, 1987; 54 FR 21775, May 19, 1989; 55 FR 14816, Apr. 18, 1990; 57 FR 30341, July 8, 1992; 60 FR 46493, Sept. 6, 1995]
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