The Law. GEPA Appeal: Who? What? When? Why? Where? General Education Provisions Act

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1 Education: The New Forum 2017 Education: The New Federalism! Spring Forum 2017 GEPA Appeal: Who? What? When? Why? Where? Leigh Manasevit, Esq. Bonnie Graham, Esq. The Law 2 General Education Provisions Act 20 U.S.C et seq. Applicable to the majority of federal education programs administered by the U.S. Department of Education Topics: General Authority of ED Secretary Appropriations and Evaluations Operation and Administration of Education Programs Enforcement Privacy 3 1

2 GEPA Appeal (20 USC 1231b 2) [A]ny applicant or recipient aggrieved by the final action of the [SEA], and alleging a violation of state or federal law, rules, regulations, or guidelines governing the applicable program, in 1. disapproving an application in whole or part, 2. failing to provide funds in amounts required by law or regulations, 3. ordering, in accordance with a final State audit resolution determination, the repayment of misspent or misapplied Federal funds, or 4. terminating further assistance for an approved program, may within 30 days request a hearing. 4 Implementing regulations EDGAR : Hearing re: disapproval of an application EDGAR : Hearing re: (1) ordering the repayment of misspent or misapplied funds; or (2) terminating further assistance for an approved project 5 Who? 6 2

3 Applicant or subrecipient of stateadministered program funds, aggrieved by final State action ESSA, IDEA, Perkins, AEFLA 7 State Educational Agency or State Agency? GEPA: State educational agency EDGAR: State agency administering programs listed in chart must provide hearing (76.401(a)) For other education programs, a state agency other than an SEA is not required to provide an opportunity for a hearing. 8 What? 9 3

4 Hearing on the record In Re Appeal of Clovis Unified School District CDE issued a final decision in April Clovis appealed. CDE denied the appeal, but further revised its final decision in correspondence in October Clovis appealed to ED. CDE argument: (1) Clovis participated in investigation/review, (2) Clovis allowed to present evidence without restriction while appeal was under review, (3) Received full hearing under CA Uniform Complaint Procedures Clovis argument: formal adjudication consistent with Administrative Procedure Act 10 Hearing on the record Decision: (1) Participation in investigation/audit process is irrelevant. GEPA requires hearing after final decision (2) Because CDE remained silent while reviewing Clovis s appeal and provided no structured procedure for submission of evidence, Clovis had no way of knowing... when its evidence had to be submitted by (3) CDE s reliance upon state procedures is misplaced. This appeal must be measured against GEPA and EDGAR procedures. (4) APA does not apply because CDE is not agency within meaning of the statute 11 Hearing on the record [A] hearing on the record under GEPA clearly entails more than a silent consideration and summary denial of an LEA s appeal by the SEA. 12 4

5 Hearing on the record Minimum Requirements: (1) Notice of the hearing (2) An opportunity to participate and be represented by counsel (3) An opportunity for the parties to present and challenge evidence in an orderly fashion (may be oral or written) (4) Impartial decision maker 13 Cooperative Resolution? Cooperative audit resolution: Focus on corrective actions, and provide appropriate relief 2 CFR ED Guidance: SEAs can apply the tenets of cooperative audit resolution 14 Cooperative Resolution? Recent OIG Audit Reports recommend SEAs use cooperative audit resolution to resolve LEA singleaudit findings. ED approval of the resolution? 15 5

6 When? 16 Generally, AFTER the final SEA decision EXCEPT: EDGAR (a) ESSA Sec (20 USC 7872) 17 EDGAR Exception SEAs must provide the hearing BEFORE disapproving an application for the following programs: Title I, Part A Neglected and Delinquent IDEA Parts B and C 18 6

7 ESSA Exception Requires hearing before SEA disapproval of an application, and an opportunity to resubmit the application. Title II, Part A Title IV Block Grant 21 st CCLC (???) Consolidated application 19 Hearing Timeline Within 30 days of final State action, file appeal Within 30 days of appeal filing, conduct hearing 10 days after the hearing, State issues written ruling Within 20 days, may appeal to the Secretary Secretary issues a decision???? 20 Why? 21 7

8 When the SEA 1. disapproves an application in whole or part, 2. fails to provide funds in amounts required by law or regulations, 3. orders in accordance with a final State audit resolution determination, the repayment of misspent or misapplied Federal funds, or 4. terminates further assistance for an approved program 22 And Such action violates state or federal law, rules, regulations, or guidelines governing the applicable program. Secretary Appeal: Secretary considers only whether SEA s final action violated federal requirements. 23 For example: State disallowed LEA expenditures charged to a grant based on violation of state requirement; costs were allowable under federal law. Hearing officer determined State was within authority to disapprove the costs Case settled before Secretary decision 24 8

9 Pop Quiz! SEA conducts an onsite monitoring visit and determines the subrecipient charged unallowable costs to the grant. The SEA requires the subrecipient to remove the costs from the grant award. GEPA Appeal? 25 Pop Quiz! SEA conducts a competition to award Adult ED subgrants. A post secondary applicant is denied an award. GEPA Appeal? Before or After Denial? 26 Pop Quiz! SEA mistakenly applies the Title I, Part A formula, which results in some LEAs receiving more funds, and others receiving less. The SEA makes adjustment in the subsequent year so that each LEA is made whole. GEPA Appeal? Before or After the Adjustment? 27 9

10 Pop Quiz! SEA sustains an LEA s single audit finding seeking a recovery of funds. SEA requires the LEA payback the misspent funds. GEPA Appeal? North Carolina OIG Audit: (a): Management letter should describe appeal process. 28 Where? 29 SEA process vs. ED process GEPA 1231b 2 is a separate process from enforcement proceedings initiated by ED. Office of Hearings and Appeals (Office of Administrative Law Judges) Formerly the Education Appeals Board 30 10

11 ED Recovery Proceedings 20 USC 1234a ED seeks recovery from State, even if LEA misexpended the funds. SEA may recover from district if: SEA transmitted copy of ED determination letter within 10 days of receipt; and SEA consulted with affected subrecipient to determine whether to appeal the determination. 31 ED Recovery Proceedings 20 USC 1234a Initial hearing with Administrative Law Judge Any in person conference, hearing or argument is held in DC unless the ALJ determines that the convenience and necessity of the parties requires that it be held elsewhere (EDGAR 81.9) Opportunity to appeal to the Secretary, and further to U.S. Circuit Court. 32 Legal Disclaimer This presentation is intended solely to provide general information and does not constitute legal advice or a legal service. This presentation does not create a client lawyer relationship with Brustein & Manasevit, PLLC and, therefore, carries none of the protections under the D.C. Rules of Professional Conduct. Attendance at this presentation, a later review of any printed or electronic materials, or any follow up questions or communications arising out of this presentation with any attorney at Brustein & Manasevit, PLLC does not create an attorney client relationship with Brustein & Manasevit, PLLC. You should not take any action based upon any information in this presentation without first consulting legal counsel familiar with your particular circumstances