OAR 581-002-0100: Federal Programs Appeals Process

(1) The appeal procedures required by this rule apply to appeals of Department of Education “the Department” decisions affecting local education agencies participating in the following federal programs: (a) Title I, Part A of the Elementary and Secondary Education Act; (b) Title I, Part C of the Elementary and Secondary Education Act; (c) Title I, Part D, Subpart 2, of the Elementary and Secondary Education Act; (d) Title II, Part A of the Elementary and Secondary Education Act; (e) Title III, Part A of the Elementary and Secondary Education Act; (f) Title IV, Part A of the Elementary and Secondary Education Act; (g) Title IV, Part B of the Elementary and Secondary Education Act; (h) Title V, Part B of the Elementary and Secondary Education Act; (i) McKinney-Vento Homeless Education; (j) Stronger Connections Grant authorized under the Bipartisan Safer Communities Act; and (k) American Rescue Plan-Homeless Children Youth Programs I and II. (2) A local education agency subject to these rules may appeal the following: (a) The disapproval, in whole or in part, of a new application for participation or an application for renewed participation; (b) A failure to approve a new application for participation or an application for renewed participation; (c) The suspension of participation; (d) The failure to provide funds in amounts that accord with the requirements of specific laws and regulations; (e) An order, in accordance with a final State audit resolution determination, to repay misspent or misapplied Federal funds; and (f) The termination of further assistance. (3) The Department shall notify the local education agency (Appellant) in writing of the grounds upon which the Department based its action identified in subsection (2) of this rule. The notice must also state the procedures for requesting an appeal of the action. Notice means a letter sent by certified mail, return receipt (or the equivalent private delivery service) or by email, that describes an action or taken by the Department. The notice is considered to be received by the Appellant when it is delivered, or sent by email. If the notice is undeliverable, it is considered to be received by the Appellant five days after being sent to the Appellant’s last known mailing address, facsimile number, or email address. (4) A request for appeal of an action identified in subsection (2) of this rule must be in writing and must be made by the Appellant affected by such action. The Department must receive the request for appeal no later than 30 calendar days from the date the Appellant received the notice of Department action. The request for appeal must allege in pleadings, affidavits, and supporting documents that the Department violated State or Federal law, rules, regulations, or guidelines governing the federal title program. The Department shall deny any request for appeal that fails to: (a) State the nature of the Appellant’s interest; (b) Assert the facts showing how the Appellant is adversely affected or aggrieved by the Department’s action; and (c) Allege that the Department violated State or Federal law, rules, regulations, or guidelines governing the federal program. (5) For appeals under sections 2(a) and 2(b) of this rule, a hearing on the record will be conducted by an impartial panel designated by the Oregon Department of Education. The impartial panel will conduct the hearing entirely on the basis of documentation submitted unless: (a) The impartial panel determines, after reviewing all appropriate submissions, that an evidentiary hearing is needed to resolve a material factual issue in dispute. (b) The impartial panel determines, after reviewing all appropriate submissions, that oral argument is needed to clarify the issues in the case. (c) At the party’s request––if after consultation with the parties—the impartial panel determines that an evidentiary hearing or an oral argument is needed. (d) The procedures described in section (3) of this rule do not apply to the review conducted by the impartial panel under this section. (6) Appeals under sections 2(c), 2(d), 2(e), and 2(f) of this rule shall be conducted as a contested case hearing under ORS 183.411 to 183.471 and the Attorney General’s Model Rules of Procedure under the Administrative Procedure Act in effect on January 1, 2012. The hearing shall be conducted by and under the control of the Administrative Law Judge of the Office of Administrative Hearings that is assigned to the case and must be held within 30 days of the date of receipt by the Department of the request for appeal. The Administrative Law Judge may set reasonable time limits for oral presentation and may exclude or limit cumulative, repetitious, or immaterial matter. (a) The Appellant bears the burden of proof to show that the Department’s action identified in subsection (1) of this rule constitutes a violation of State or Federal law, rules, regulations, or guidelines governing the Federal Education Program. (b) Evidence of a type commonly relied upon by reasonably prudent persons in the conduct of their serious affairs shall be admissible. Irrelevant, immaterial or unduly repetitious evidence shall be excluded. (c) As soon as practicable after the hearing, but in no case later than five calendar days after the hearing, the Administrative Law Judge shall prepare a proposed order and serve the proposed order on the Department and the Appellant. (d) No later than ten calendar days after the hearing, the Department shall either adopt the proposed order or prepare a new final order.