20 U.S.C. § 1234d — Withholding

Page 921 TITLE 20—EDUCATION § 1234d (A) actually and reasonably relied upon erro- neous written guidance provided by the De- partment; (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 ju- dicial 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 re- quest for guidance described in paragraph (2)(B) more than 90 days after its receipt, the State or local educational agency that submitted the re- quest shall comply with the guidance received at the earliest practicable time. (5) In order to demonstrate the existence of the mitigating circumstances described in para- graph (2)(B), the State or local educational agency shall demonstrate that— (A) the written request for guidance accu- rately described the proposed expenditure or practice and included the facts necessary for a determination of its legality; and (B) the written request for guidance con- tained a certification by the chief legal officer of the State educational agency that such offi- cer had examined the proposed expenditure or practice and believed the proposed expenditure or practice was permissible under then appli- cable State and Federal law; and (C) the State or local educational agency reasonably believed that the proposed expendi- ture or practice was permissible under then applicable State and Federal law. (6) The Secretary shall disseminate to State educational agencies responses to written re- quests for guidance, described in paragraph (5), that reflect significant interpretations of appli- cable 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, § 453, as added Pub. L. 95–561, title XII, § 1232, Nov. 1, 1978, 92 Stat. 2349; amended Pub. L. 100–297, title III, § 3501(a), Apr. 28, 1988, 102 Stat. 353.) Editorial Notes AMENDMENTS 1988—Pub. L. 100–297 amended section generally, sub- stituting provisions relating to measure of recovery for provisions relating to withholdings. See section 1234d of this title. Statutory Notes and Related Subsidiaries 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. § 1234c. Remedies for existing violations (a) Whenever the Secretary has reason to be- lieve that any recipient of funds under any ap- plicable program is failing to comply substan- tially with any requirement of law applicable to such funds, the Secretary may— (1) withhold further payments under that program, as authorized by section 1234d of this title; (2) issue a complaint to compel compliance through a cease and desist order of the Office, as authorized by section 1234e of this title; (3) enter into a compliance agreement with a recipient to bring it into compliance, as au- thorized by section 1234f of this title; or (4) take any other action authorized by law with respect to the recipient. (b) Any action, or failure to take action, by the Secretary under this section shall not pre- clude the Secretary from seeking a recovery of funds under section 1234a of this title. (Pub. L. 90–247, title IV, § 454, as added Pub. L. 95–561, title XII, § 1232, Nov. 1, 1978, 92 Stat. 2349; amended Pub. L. 100–297, title III, § 3501(a), Apr. 28, 1988, 102 Stat. 354.) Editorial Notes AMENDMENTS 1988—Pub. L. 100–297 amended section generally, sub- stituting provisions relating to remedies for existing violations for provisions relating to cease and desist or- ders. See section 1234e of this title. Statutory Notes and Related Subsidiaries 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. § 1234d. Withholding (a) Discretionary authority over further pay- ments under applicable program In accordance with section 1234c of this title, the Secretary may withhold from a recipient, in whole or in part, further payments (including payments for administrative costs) under an ap- plicable program. (b) Notice requirements Before withholding payments, the Secretary shall notify the recipient, in writing, of— (1) the intent to withhold payments; (2) the factual and legal basis for the Sec- retary’s belief that the recipient has failed to comply substantially with a requirement of law; and (3) an opportunity for a hearing to be held on a date at least 30 days after the notification has been sent to the recipient. Page 922 TITLE 20—EDUCATION § 1234e (c) Hearing The hearing shall be held before the Office and shall be conducted in accordance with the rules prescribed pursuant to subsections (f) and (g) of section 1234 of this title. (d) Suspension of payments, authorities, etc. Pending the outcome of any hearing under this section, the Secretary may suspend pay- ments to a recipient, suspend the authority of the recipient to obligate Federal funds, or both, after such recipient has been given reasonable notice and an opportunity to show cause why fu- ture payments or authority to obligate Federal funds should not be suspended. (e) Findings of fact Upon review of a decision of the Office by the Secretary, the findings of fact by the Office, if supported by substantial evidence, shall be con- clusive. However, the Secretary, for good cause shown, may remand the case to the Office to take further evidence, and the Office may there- upon make new or modified findings of fact and may modify its previous action. Such new or modified findings of fact shall likewise be con- clusive if supported by substantial evidence. (f) Final agency action The decision of the Office in any hearing under this section shall become final agency action 60 days after the recipient receives written notice of the decision unless the Secretary either— (1) modifies or sets aside the decision, in whole or in part, in which case the decision of the Secretary shall become final agency ac- tion when the recipient receives written no- tice of the Secretary’s action; or (2) remands the decision of the Office. (Pub. L. 90–247, title IV, § 455, as added Pub. L. 95–561, title XII, § 1232, Nov. 1, 1978, 92 Stat. 2350; amended Pub. L. 100–297, title III, § 3501(a), Apr. 28, 1988, 102 Stat. 354.) Editorial Notes AMENDMENTS 1988—Pub. L. 100–297 amended section generally, sub- stituting provisions relating to withholding for provi- sions relating to judicial review. See section 1234g of this title. Statutory Notes and Related Subsidiaries 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. § 1234e. Cease and desist orders (a) Issuance and contents of complaint In accordance with section 1234c of this title, the Secretary may issue to a recipient under an applicable program a complaint which— (1) describes the factual and legal basis for the Secretary’s belief that the recipient is fail- ing to comply substantially with a require- ment of law; and (2) contains a notice of a hearing to be held before the Office on a date at least 30 days after the service of the complaint. (b) Appearance contesting order The recipient upon which a complaint has been served shall have the right to appear before the Office on the date specified and to show cause why an order should not be entered by the Office requiring the recipient to cease and desist from the violation of law charged in the com- plaint. (c) Report; issuance of cease and desist order The testimony in any hearing held under this section shall be reduced to writing and filed with the Office. If upon that hearing the Office is of the opinion that the recipient is in viola- tion of any requirement of law as charged in the complaint, the Office shall— (1) make a report in writing stating its find- ings of fact; and (2) issue to the recipient an order requiring the recipient to cease and desist from the practice, policy, or procedure which resulted in the violation. (d) Report and order as final agency action The report and order of the Office under this section shall become the final agency action when the recipient receives the report and order. (e) Enforcement of final order The Secretary may enforce a final order of the Office under this section which becomes final agency action by— (1) withholding from the recipient any por- tion of the amount payable to it, including the amount payable for administrative costs, under the applicable program; or (2) certifying the facts to the Attorney Gen- eral who shall cause an appropriate proceeding to be brought for the enforcement of the order. (Pub. L. 90–247, title IV, § 456, as added Pub. L. 95–561, title XII, § 1232, Nov. 1, 1978, 92 Stat. 2351; amended Pub. L. 100–297, title III, § 3501(a), Apr. 28, 1988, 102 Stat. 355.) Editorial Notes AMENDMENTS 1988—Pub. L. 100–297 amended section generally, sub- stituting provisions relating to cease and desist orders for provisions relating to use of recovered funds. See section 1234h of this title. Statutory Notes and Related Subsidiaries 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. § 1234f. Compliance agreements (a) Discretionary authority; purposes of agree- ment In accordance with section 1234c of this title, the Secretary may enter into a compliance agreement with a recipient under an applicable program. The purpose of any compliance agree- ment under this section shall be to bring the re- cipient into full compliance with the applicable requirements of law as soon as feasible and not to excuse or remedy past violations of such re- quirements.