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development and implementation of $8222.96–222.101 [Reserved)
INDIAN POLICIES AND PROCEDURES
COMPLAINT AND HEARING PROCEDURES (Authority: 20 U.S.C. 7704)
$ 222.102 Who may file a complaint $ 222.95 How are Indian policies and about a local educational agency's
procedures reviewed to ensure com Indian policies and procedures? pliance with the requirements in section 8004(a) of the Act?
(a) Only a tribal chairman or an au
thorized designee for a tribe that has (a) The Director of the Impact Aid
students attending an LEA's schools Program (Director) periodically re
may file a written complaint with the views applicant LEAS' IPPs to ensure Assistant Secretary for Elementary that they comply with the provisions and Secondary Education (Assistant of section 8004(a) and $ 222.94.
Secretary) regarding any action of the (b) If the Director determines either
LEA pursuant to, or relevant to, secthat the LEA'S IPPs do not comply tion 8004(a) and 8222.94. with the minimum standards of section (b) If a tribe files a complaint 8004(a), or that the IPPs have not been through a designee, the tribe shall acimplemented in accordance with
knowledge in writing in the complaint $ 222.94, the Director provides the LEA that the designee is authorized to act with written notification of the defi on its behalf. ciencies related to its IPPs and requires that the LEA take appropriate
(Authority: 20 U.S.C. 7704(e)(1)) action.
$ 222.103 What must be included in a (c) An LEA shall make the necessary complaint? changes within 60 days of receipt of
For purposes of this subpart, a comwritten notification from the Director.
plaint is a signed statement that in(d) If the LEA fails to make the nec
cludes— essary adjustments or changes within
(a) An allegation that an LEA has the prescribed period of time, the Di
failed to develop and implement IPPS rector may withhold all payments that
in accordance with section 8004(a); the LEA is eligible to receive under
(b) Information that supports the alsection 8003.
legation; (e) Each LEA that has developed
(c) A specific request for relief; and IPPs shall review those IPPs annually
(d) A statement describing what to ensure that they
steps the tribe has taken to resolve (1) Comply with the provisions in sec
with the LEA the matters on which the tion 8004(a); and
complaint is based. (2) Are implemented by the LEA in accordance with $222.94.
(Authority: 20 U.S.C. 7704(e)(1)) (f) If an LEA determines that its
$ 222.104 When does the Assistant SecIPPs do not meet the requirements in retary consider a complaint reparagraphs (e) (1) and (2) of this sec ceived? tion, the LEA shall amend its IPPs to
(a) The Assistant Secretary considers conform with those requirements with
a complaint to have been received only in 60 days of its determination.
after the Assistant Secretary deter(g) An LEA that amends its IPPS
mines that the complaintshall, within 30 days, send a copy of the
(1) Satisfies the requirements in amended IPPs to
$8 222.102 and 222.103; and (1) The Director for approval; and
(2) Is in writing and signed by the (2) The affected tribe or tribes.
tribal chairman or the tribe's author(Approved by the Office of Management and
ized designee. Budget under control number 1810-0036)
(b) If the Assistant Secretary deter
mines that a complaint fails to meet (Authority: 20 U.S.C. 7704 (a) and (d)(2))
the requirements in $8222.102–222.103, [60 FR 50778, Sept. 29, 1995, as amended at 62 the Assistant Secretary notifies the FR 35416, July 1, 1997]
tribe or its designee in writing that the
complaint has been dismissed for purposes of invoking the hearing procedures in $8 222.102–222.113.
(c) Any notification that a complaint has been dismissed includes the reasons why the Assistant Secretary determined that the complaint did not meet the requirements in $8222.102 and 222.103.
(d) Notification that a complaint has been dismissed does not preclude other efforts to investigate or resolve the issues raised in the complaint, including the filing of an amended complaint. (Authority: 20 U.S.C. 7704(e)(1))
$ 222.105–222.107 (Reserved)
$222.108 What actions must be taken
upon receipt of a complaint? Within 10 working days of receipt of 2 complaint, the Secretary or his designee
(a) Designates a hearing examiner to conduct a hearing;
(b) Designates a time for the hearing that is no more than 30 days after the designation of a hearing examiner;
(c) Designates a place for the hearing that, to the extent possible, is(1) Near the LEA; or
(2) At another location convenient to the tribe and the LEA, if it is determined that there is good cause to designate another location;
(d) Notifies the tribe and the LEA of the time, place, and nature of the hearing; and
(e) Transmits copies of the complaint to the LEA and the affected tribe or tribes. (Authority: 20 U.S.C. 7704(e))
$222.110 What are the procedures for
conducting a hearing on a local educational agency's Indian policies
and procedures? Hearings on IPP complaints filed by an Indian tribe or tribes against an LEA are conducted as follows:
(a) The hearing must be open to the public.
(b) Parties may be represented by counsel.
(C)(1) Each party may submit oral and written testimony that is relevant to the issues in the proceeding and make recommendations concerning appropriate remedial actions.
(2) A party may object to evidence it considers to be irrelevant or unduly repetitious.
(d) No party shall communicate orally or in writing with the hearing examiner or the Assistant Secretary on matters under review, except minor procedural matters, unless all parties to the complaint are given
(1) Timely and adequate notice of the communication; and
(2) Reasonable opportunity to respond.
(e) For each document that a party submits, the party shall
(1) File one copy for inclusion in the record of the proceeding; and
(2) Provide a copy to each of the other parties to the proceeding.
(f) Each party shall bear only its own costs in the proceeding. (Authority: 20 U.S.C. 7704(e))
$ 222.109 When may a local edu
cational agency reply to a com
plaint? An LEA's reply to the charges in the complaint must be filed with the hearing examiner within 15 days of the date the LEA receives a copy of the notice and complaint described in 222.108 (d) and (e) from the hearing examiner. (Authority: 20 U.S.C. 7704(e))
$ 222.111 What is the authority of the
hearing examiner in conducting a hearing? The hearing examiner is authorized to conduct a hearing under section 8004(e) and 88 222.109-222.113 as follows:
(a) The hearing examiner may
(1) Clarify, simplify, or define the issues or consider other matters that may aid in the disposition of the complaint;
(2) Direct the parties to exchange relevant documents or information; and
(3) Examine witnesses.
(1) Regulates the course of proceedings and conduct of the parties;
(2) Arranges for the preparation of a transcript of each hearing and provides one copy to each party;
(3) Schedules the submission of oral (3) The reasons for the Assistant Secand documentary evidence;
retary's decision. (4) Receives, rules on, excludes, or (b) After completing the final deterlimits evidence;
mination required by paragraph (a) of (5) Establishes and maintains
this section, the Assistant Secretary record of the proceeding, including any sends the parties a copy of that detertranscripts referenced above;
mination, (6) Establishes reasonable rules governing public attendance at the pro
(c) The Assistant Secretary's final ceeding; and
determination under paragraph (a) of
this section is the final action of the (7) Is bound by all applicable statutes and regulations and may neither waive
Department concerning the complaint them nor rule them invalid,
and is subject to judicial review. (Authority: 20 U.S.C. 7704(e))
(Authority: 20 U.S.C. 7704(e)) $ 222.112 What procedures are fol
WITHHOLDING AND RELATED PROCElowed after the hearing?
DURES FOR INDIAN POLICIES AND PRO(a) Each party may submit to the
CEDURES hearing examiner additional evidence that is relevant to the issues raised at SOURCE: 62 FR 35416, July 1, 1997, unless the hearing, within the time period and
otherwise noted. in the manner specified by the hearing
$ 222.114 How does the Assistant Secexaminer. (b) Within 30 days after the hearing,
retary implement the provisions of
this subpart? the hearing examiner(1) Makes, on the basis of the record,
The Assistant Secretary implements written findings of fact and rec
section 8004 of the Act and this subpart ommendations concerning any appro through such actions as the Assistant priate remedial action that should be Secretary determines to be approtaken;
priate, including the withholding of (2) Submits those findings and rec funds in accordance with $8222.115 ommendations, along with the hearing 222.122, after affording the affected record, to the Assistant Secretary; and LEA, parents, and Indian tribe or
(3) Sends a copy of those findings and tribes an opportunity to present their recommendations to each party.
views. (c)(1) Each party may file with the Assistant Secretary comments on the
(Authority: 20 U.S.C. 7704 (d)(2), (e) (8)–(9)) hearing examiner's findings and recommendations.
$ 222.115 When does the Assistant Sec
retary withhold payments from a (2) The comments must be received
local educational agency under this by the Assistant Secretary within 10
subpart? days after the party receives a copy of the hearing examiner's findings and
Except as provided in $222.120, the recommendations.
Assistant Secretary withholds pay
ments to an LEA if(Authority: 20 U.S.C. 7704(e))
(a) The Assistant Secretary deter$ 222.113 What are the responsibilities mines it is necessary to enforce the re
of the Assistant Secretary after the quirements of section 8004 of the Act or hearing?
this subpart; or (a) Within 30 days after receiving the
(b) After a hearing has been conentire hearing record and the hearing
ducted under section 8004(e) of the Act examiner's findings and recommenda
and 88 222.102–222.113 (IPP hearing tions, the Assistant Secretary makes, (1) The LEA rejects the final deteron the basis of the record, a written de
mination of the Assistant Secretary; or termination that includes
(2) The LEA fails to implement the (1) Any appropriate remedial action required remedy within the time estabthat the LEA must take;
lished and the Assistant Secretary de(2) A schedule for completing any re termines that the required remedy will medial action; and
not be undertaken by the LEA even if
the LEA is granted a reasonable exten be withheld. The Assistant Secretary sion of time.
provides the affected Indian tribe or (Authority: 20 U.S.C. 7704 (a), (b), (d)(2),
tribes with an opportunity to respond (e)(8)–(9))
to the LEA's submission.
(2) If after reviewing an LEA's writ8 222.116 How are withholding proce ten explanation and supporting docu
dures initiated under this subpart? mentation, and any response from the (a) If the Assistant Secretary decides Indian tribe or tribes, the Assistant to withhold an LEA's funds, the Assist Secretary determines to withhold an ant Secretary issues a written notice of LEA's payments, the Assistant Secintent to withhold the LEA's pay retary notifies the LEA and the afments.
fected Indian tribe or tribes of the (b) In the written notice, the Assist withholding determination in writing ant Secretary
by certified mail with return receipt (1) Describes how the LEA failed to requested prior to withholding the paycomply with the requirements at issue; ments. and
(3) In the withholding determination, (2)(i) Advises an LEA that has par
the Assistant Secretary states the ticipated in an IPP hearing that it may
facts supporting the determination request, in accordance with $222.117(c),
that the LEA failed to comply with the that its payments not be withheld; or
legal requirements at issue, and why (ii) Advises an LEA that has not par
the provisions of $222.120 (provisions ticipated in an IPP hearing that it may
governing circumstances when an LEA request a withholding hearing in ac
is exempt from the withholding of paycordance with $ 222.117(d). (c) The Assistant Secretary sends a
ments) are inapplicable. This deter
mination is the final decision of the copy of the written notice of intent to withhold payments to the LEA and the
Department. affected Indian tribe or tribes by cer
(d) An LEA that has not participated in tified mail with return receipt re
an IPP hearing. (1) An LEA that has not quested.
participated in an IPP hearing has 30
days from the date of its receipt of the (Authority: 20 U.S.C. 7704 (a), (b), (d)(2), and Assistant Secretary's notice of intent (e) (8)–(9))
to withhold funds to file a written re$ 222.117 What procedures are fol.
quest for a withholding hearing with lowed after the Assistant Secretary
the Assistant Secretary. The written issues a notice of intent to withhold request for a withholding hearing payments?
must (a) The withholding of payments au
(i) Identify the issues of law and facts thorized by section 8004 of the Act is in dispute; and conducted in accordance with section (ii) State the LEA's position, to8004 (d)(2) or (e)(8)–(9) of the Act and gether with the pertinent facts and the regulations in this subpart.
reasons supporting that position. (b) An LEA that receives a notice of (2) If the LEA's request for a withintent to withhold payments from the holding hearing is accepted, the AssistAssistant Secretary is not entitled to ant Secretary sends written notificaan Impact Aid hearing under the provi tion of acceptance to the LEA and the sions of section 8011 of the Act and sub affected Indian tribe or tribes and forpart J of this part.
wards to the hearing examiner a copy (c) After an IPP hearing. (1) An LEA of the Assistant Secretary's written that rejects or fails to implement the notice, the LEA's request for a withfinal determination of the Assistant holding hearing, and any other relSecretary after an IPP hearing has 10 evant documents. days from the date of the LEA's receipt (3) If the LEA's request for a withof the written notice of intent to with holding hearing is rejected, the Assisthold funds to provide the Assistant ant Secretary notifies the LEA in writSecretary with a written explanation ing that its request for a hearing has and documentation in support of the been rejected and provides the LEA reasons why its payments should not with the reasons for the rejection.
(4) The Assistant Secretary rejects request for a withholding hearing, and requests for withholding hearings that all amendments and exhibits to those are not filed in accordance with the documents, must be made part of the time for filing requirements described hearing record. in paragraph (a)(1) of this section. An (3) Technical rules of evidence, inLEA that files a timely request for a cluding the Federal Rules of Evidence, withholding hearing, but fails to meet do not apply to hearings conducted the other filing requirements set forth under this subpart, but the hearing exin paragraph (d)(1) of this section, has
aminer may apply rules designed to as30 days from the date of receipt of the sure production of the most credible Assistant Secretary's notification of evidence available, including allowing rejection to submit an acceptable the cross-examination of witnesses. amended request for a withholding (4) Each party may examine all docuhearing.
ments and other evidence offered or ac(e) If an LEA fails to file a written cepted for the record, and may have explanation in accordance with para the opportunity to refute facts and argraph (c) of this section, or a request guments advanced on either side of the for a withholding hearing or an amend issues. ed request for a withholding hearing in (5) A transcript must be made of the accordance with paragraph (d) of this oral evidence unless the parties agree section, the Secretary proceeds to take otherwise. appropriate administrative action to (6) Each party may be represented by withhold funds without further notifi counsel. cation to the LEA.
(7) The hearing examiner is bound by (Authority: 20 U.S.C. 7704 (a), (b), (d)(2), and all applicable statutes and regulations (e) (8)–(9))
and may neither waive them nor rule
them invalid. $ 222.118 How are withholding hear (d) Filing requirements. (1) All written
ings conducted in this subpart? submissions must be filed with the (a) Appointment of hearing examiner. hearing examiner by hand-delivery, Upon receipt of a request for a with mail, or facsimile transmission. The holding hearing that meets the require Secretary discourages the use of facments of 8222.117(d), the Assistant Sec simile transmission for documents retary requests the appointment of a longer than five pages. hearing examiner.
(2) If agreed upon by the parties, a (b) Time and place of the hearing. party may serve a document upon the Withholding hearings under this sub other party by facsimile transmission. part are held at the offices of the De (3) The filing date for a written subpartment in Washington, DC, at a time mission under this subpart is the date fixed by the hearing examiner, unless the document isthe hearing examiner selects another (i) Hand-delivered; place based upon the convenience of (ii) Mailed; or the parties.
(iii) Sent by facsimile transmission. (c) Proceeding. (1) The parties to the (4) A party filing by facsimile transwithholding hearing are the Assistant mission is responsible for confirming Secretary and the affected LEA. An af that a complete and legible copy of the fected Indian tribe is not a party, but, document was timely received by the at the discretion of the hearing exam hearing examiner. iner, may participate in the hearing (5) Any party filing a document by and present its views on the issues rel facsimile transmission must file a folevant to the withholding determina- low-up hard copy by hand-delivery or tion.
mail within a reasonable period of (2) The parties may introduce all rel time. evant evidence on the issues stated in (e) Procedural rules. (1) If the hearing the LEA's request for withholding examiner determines that no dispute hearing or other issues determined by exists as to a material fact or that the the hearing examiner during the pro resolution of any disputes as to mateceeding. The Assistant Secretary's no rial facts would not be materially astice of intent to withhold, the LEA's sisted by oral testimony, the hearing