Appeals, notice, hearing, and mediation; alternative agency for Indian tribe

42 U.S.C. § 9841

• Title: 42 — The Public Health and Welfare
• Chapter: SUBCHAPTER II—HEAD START PROGRAMS

Text

(a) Notice requirements; suspension or termination of assistance stayed pending hearing; mediation
The Secretary shall prescribe—
(1) procedures to assure that special notice of and an opportunity for a timely and expeditious appeal to the Secretary will be provided for an agency or organization which desires to serve as a delegate agency under this subchapter and whose application to the Head Start agency has been wholly or substantially rejected or has not been acted upon within a period of time deemed reasonable by the Secretary, in accordance with regulations which the Secretary shall prescribe;
(2) procedures to assure that financial assistance under this subchapter shall not be suspended, except in emergency situations, unless the recipient agency has been given reasonable notice and opportunity to show cause why such action should not be taken;
(3) procedures to assure that financial assistance under this subchapter may be terminated or reduced, and an application for refunding may be denied, after the recipient has been afforded reasonable notice and opportunity for a full and fair hearing, including—
(A) a right to file a notice of appeal of a decision not later than 30 days after notice of the decision from the Secretary; and
(B) access to a full and fair hearing of the appeal, not later than 120 days after receipt by the Secretary of the notice of appeal;
(4) procedures (including mediation procedures) are developed and published, to be used in order to—
(A) resolve in a timely manner conflicts potentially leading to an adverse action between—
(i) recipients of financial assistance under this subchapter; and
(ii) delegate agencies, or policy councils of Head Start agencies;
(B) avoid the need for an administrative hearing on an adverse action; and
(C) prohibit a Head Start agency from expending financial assistance awarded under this subchapter for the purpose of paying legal fees, or other costs incurred, pursuant to an appeal under paragraph (3);
(5) procedures to assure that the Secretary may suspend financial assistance to a recipient under this subchapter—
(A) except as provided in subparagraph (B), for not more than 30 days; or
(B) in the case of a recipient under this subchapter that has multiple and recurring deficiencies for 180 days or more and has not made substantial and significant progress toward meeting the goals of the grantee's quality improvement plan or eliminating all deficiencies identified by the Secretary, during the hearing of an appeal described in paragraph (3), for any amount of time; and
(6) procedures to assure that in cases where a Head Start agency prevails in a decision under paragraph (4), the Secretary may determine and provide a reimbursement to the Head Start agency for fees deemed reasonable and customary.
(b) Notification of conflict by Head Start agency to regional office
In prescribing procedures for the mediation described in subsection (a)(4), the Secretary shall specify—
(1) the date by which a Head Start agency engaged in a conflict described in subsection (a)(4) will notify the appropriate regional office of the Department of the conflict; and
(2) a reasonable period for the mediation.
(c) Timeline for administrative hearing
The Secretary shall also specify—
(1) a timeline for an administrative hearing, if necessary, on an adverse action; and
(2) a timeline by which the person conducting the administrative hearing shall issue a decision based on the hearing.
(d) Termination of designation not stayed upon appeal
In any case in which a termination, reduction, or suspension of financial assistance under this subchapter is upheld in an administrative hearing under this section, such termination, reduction, or suspension shall not be stayed pending any judicial appeal of such administrative decision.
(e) Establishment of alternative agency by Indian tribe
(1) The Secretary shall by regulation specify a process by which an Indian tribe may identify and establish an alternative agency, and request that the alternative agency be designated under section 9836 of this title as the Head Start agency providing services to the tribe, if—
(A) the Secretary terminates financial assistance under this section to the only agency that was receiving financial assistance to provide Head Start services to the Indian tribe; and
(B) the tribe would otherwise be precluded from providing such services to the members of the tribe.
(2) The regulation required by this subsection shall prohibit such designation of an alternative agency that includes an employee who—
(A) served on the administrative staff or program staff of the agency described in paragraph (1)(A); and
(B) was responsible for a deficiency that—
(i) relates to the performance standards or financial management standards described in section 9836a(a)(1) of this title; and
(ii) was the basis for the termination of financial assistance described in paragraph (1)(A);
as determined by the Secretary after providing the notice and opportunity described in subsection (a)(3).

History

(Pub. L. 97–35, title VI, §646, Aug. 13, 1981, 95 Stat. 504; Pub. L. 101–501, title I, §115, Nov. 3, 1990, 104 Stat. 1232; Pub. L. 103–252, title I, §113, May 18, 1994, 108 Stat. 641; Pub. L. 110–134, §16, Dec. 12, 2007, 121 Stat. 1421.)

Editorial Notes

Editorial Notes

Amendments
2007—Subsec. (a). Pub. L. 110–134, §16(1), struck out "procedures to assure that" after "prescribe" in introductory provisions.
Subsec. (a)(1), (2). Pub. L. 110–134, §16(2), inserted "procedures to assure that" after the par. designation.
Subsec. (a)(3) to (6). Pub. L. 110–134, §16(3), added pars. (3) to (6) and struck out former pars. (3) and (4) which read as follows:
"(3) financial assistance under this subchapter shall not be terminated or reduced, an application for refunding shall not be denied, and a suspension of financial assistance shall not be continued for longer than 30 days, unless the recipient has been afforded reasonable notice and opportunity for a full and fair hearing; and
"(4) the Secretary shall develop and publish procedures (including mediation procedures) to be used in order to—
"(A) resolve in a timely manner conflicts potentially leading to adverse action between—
"(i) recipients of financial assistance under this subchapter; and
"(ii) delegate agencies or Head Start Parent Policy Councils; and
"(B) avoid the need for an administrative hearing on an adverse action."
1994—Subsec. (a)(4). Pub. L. 103–252, §113(a), added par. (4).
Subsecs. (b) to (e). Pub. L. 103–252, §113(b), added subsecs. (b) to (e) and struck out former subsec. (b) which read as follows: "The Secretary may not prescribe any procedure that would modify the operation of section 1303.21 or 1303.33, or any of subdivisions (a) through (f) of section 1303.35, of title 45 of the Code of Federal Regulations as in effect on April 1, 1990."
1990—Subsec. (a). Pub. L. 101–501, §115(1), (2), designated existing provisions as subsec. (a) and inserted "or reduced" after "terminated" in par. (3).
Subsec. (b). Pub. L. 101–501, §115(3), added subsec. (b).

Statutory Notes and Related Subsidiaries

Effective Date of 1994 Amendment
Amendment by Pub. L. 103–252 effective May 18, 1994, but not applicable to Head Start agencies and other recipients of financial assistance under the Head Start Act (42 U.S.C. 9831 et seq.) until Oct. 1, 1994, see section 127 of Pub. L. 103–252, set out as a note under section 9832 of this title.

Effective Date of 1990 Amendment
Amendment by section 115(1), (2) of Pub. L. 101–501 effective Oct. 1, 1990, and amendment by section 115(3) of Pub. L. 101–501 effective Apr. 1, 1990, see section 1001(a), (b)(2) of Pub. L. 101–501, set out as a note under section 8621 of this title.