General Education Provisions Act (GEPA): Overview and Issues
Congressional research reportMar 18, 2010
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General Education Provisions Act (GEPA):
Overview and Issues
(name redacted)
Specialist in Education Policy
(name redacted)
Legislative Attorney
March 18, 2010
Congressional Research Service
7-....
www.crs.gov
R41119
CRS Report for Congress
Prepared for Members and Committees of Congress
General Education Provisions Act (GEPA): Overview and Issues
Summary
The General Education Provisions Act (GEPA) contains a broad array of statutory provisions that
are applicable to the majority of federal education programs administered by the U.S. Department
of Education (ED), as well as provisions related to the powers and responsibilities of ED. While
these provisions cover topics as varied as appropriations and evaluations to privacy and
enforcement, several provisions are particularly worth noting, especially with respect to the
development of new programs or the appropriation of funds for existing programs. These
provisions include an extension of the period available for the obligation and expenditure of
appropriation funds; an automatic extension of the authorization of an applicable program for one
additional fiscal year; a prohibition on using funds for transportation of students or teachers to
overcome a racial imbalance or to carry out a desegregation plan; a prohibition on federal control
of education; privacy provisions that require educational agencies that receive federal funds to
provide parents with access to children’s educational records and that prohibit such agencies from
releasing such records without written consent; and a general prohibition on the use of funds
provided to ED or to an applicable program to support a national test unless it is explicitly
authorized in statutory language.
The first part of this report highlights some of the key provisions contained in GEPA. This is
followed by a section-by-section overview of the act. The report concludes with an analysis of
some of the policy issues that have arisen in the past or that may arise in the future with respect to
GEPA.
Congressional Research Service
General Education Provisions Act (GEPA): Overview and Issues
Contents
Key GEPA Provisions .................................................................................................................1
Section-by-Section Overview of GEPA Provisions ......................................................................2
Short Title, Applicability, Definitions ....................................................................................2
Part A—Functions of the Department of Education ...............................................................2
Section 410. General Authority of the Secretary ..............................................................2
Section 411. Education Impact Statement ........................................................................2
Part B—Appropriations and Evaluations ...............................................................................3
Section 420. Forward Funding ........................................................................................3
Section 421. Availability of Appropriations on Academic- or School-Year Basis;
Additional Period for Obligation of Funds....................................................................3
Section 422. Contingent Extension of Programs ..............................................................3
Section 423. Payments ....................................................................................................4
Section 424. Responsibility of States to Furnish Information ...........................................4
Section 425. Biennial Evaluation Report .........................................................................4
Section 426. Prohibition Against Use of Appropriated Funds for Busing..........................4
Section 427. Equity for Students, Teachers, and Other Program Beneficiaries..................5
Section 428. Coordination ...............................................................................................5
Section 429. Disclosure Requirements.............................................................................5
Part C—General Requirements and Conditions Concerning the Operation and
Administration of Education Programs...............................................................................6
Section 430. Joint Funding of Programs ..........................................................................6
Section 431. Collection and Dissemination of Information ..............................................6
Section 432. Review of Applications ...............................................................................7
Section 433. Technical Assistance ...................................................................................7
Section 434. Parental Involvement and Dissemination.....................................................8
Section 435. Use of Funds Withheld................................................................................8
Section 436. Applications................................................................................................8
Section 437. Regulations.................................................................................................9
Section 438. Prohibition Against Federal Control of Education........................................9
Section 439. Labor Standards ..........................................................................................9
Section 440. State Agency Monitoring and Enforcement ............................................... 10
Section 441. Single State Application ............................................................................ 10
Section 442. Single LEA Application ............................................................................ 11
Section 443. Records..................................................................................................... 12
Section 444. Protection of the Rights and Privacy of Parents and Students..................... 12
Section 445. Protection of Pupil Rights ......................................................................... 12
Section 446. Limitation on Withholding Federal Funds ................................................. 14
Section 447. Prohibition on Federally Sponsored Testing............................................... 15
Part D—Enforcement.......................................................................................................... 15
Section 451. Office of Administrative Law Judges......................................................... 15
Section 452. Recovery of Funds .................................................................................... 16
Section 453. Measure of Recovery ................................................................................ 18
Section 454. Remedies for Existing Violations .............................................................. 19
Section 455. Withholding .............................................................................................. 19
Section 456. Cease and Desist Orders............................................................................ 19
Section 457. Compliance Agreements ........................................................................... 20
Section 458. Judicial Review......................................................................................... 20
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General Education Provisions Act (GEPA): Overview and Issues
Section 459. Use of Recovered Funds ........................................................................... 20
Section 460. Definitions ................................................................................................ 21
Issues........................................................................................................................................ 21
Forward Funding and Advance Appropriations .................................................................... 21
Extension of the Period of Availability of Appropriations .................................................... 23
Automatic Extension of Program Authorizations for One Year ............................................ 23
Prohibition on Federal Control of Education........................................................................ 24
FERPA................................................................................................................................ 24
Prohibition on the Use of Funds to Support a National Test ................................................. 25
Contacts
Author Contact Information ...................................................................................................... 25
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General Education Provisions Act (GEPA): Overview and Issues
T
he General Education Provisions Act (GEPA) contains statutory provisions that are
applicable to the majority of federal education programs administered by the U.S.
Department of Education (ED), as well as provisions related to the powers and
responsibilities of ED.1 GEPA was originally enacted as Title IV of the Elementary and
Secondary Education Amendments of 1967 (P.L. 90-247), but the statute was not referred to as
the “General Education Provisions Act” until the law was amended by Title IV of the Elementary
and Secondary Education Amendments of 1969 (ESEA, P.L. 91-230) and the relevant provisions
were renamed. GEPA has been amended numerous times since its initial enactment in the 1960s.
This report provides a summary of GEPA provisions as of the most recent amendments made to
the act by the Education Sciences Reform Act (P.L. 107-279).
The first part of this report highlights some of the key provisions contained in GEPA. This is
followed by a section-by-section overview of the act. The report concludes with an analysis of
some of the policy issues that have arisen in the past or that may arise in the future with respect to
GEPA.
Key GEPA Provisions
GEPA includes numerous provisions that apply to applicable programs administered by ED,2 as
well as provisions related to the powers and responsibilities of ED. While these provisions cover
topics as varied as appropriations and evaluations to privacy and enforcement, several provisions
are particularly worth noting, especially with respect to the development of new programs or the
appropriation of funds for existing programs. These provisions are highlighted below.
•
Extension of the period available for the obligation and expenditure of
appropriation funds (Section 421).
•
Automatic extension of the authorization of an applicable program for one
additional fiscal year (Section 422).
•
Prohibition on using funds for transportation of students or teachers to overcome
a racial imbalance or to carry out a desegregation plan (Section 426).
•
Prohibition on federal control of education (Section 438).
•
Privacy provisions that require educational agencies that receive federal funds to
provide parents with access to children’s educational records and that prohibit
such agencies from releasing such records without written consent (Section 444).
•
General prohibition on the use of funds provided to ED or to an applicable
program to support a national test unless it is explicitly authorized in statutory
language (Section 447).
1
20 U.S.C. §§ 1221 et seq.
As defined in Section 400 of GEPA, an applicable program includes any program for which the Secretary of
Education or ED has administrative responsibility as provided by law or by delegation of authority pursuant to law.
2
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General Education Provisions Act (GEPA): Overview and Issues
Section-by-Section Overview of GEPA Provisions
GEPA includes multiple sections, primarily organized under four parts: Part A—Functions of the
Department of Education; Part B—Appropriations and Evaluations; Part C—General
Requirements and Conditions Concerning the Operation and Administration of Education
Programs: General Authority of the Secretary; and Part D—Enforcement. The act begins with a
section that includes provisions related to the applicability of the GEPA provisions to education
programs. A summary of each section of GEPA is provided below. The summary is not intended
to be a comprehensive examination of GEPA, but rather an overview of the contents of this act.
Short Title, Applicability, Definitions
Section 400 states that, except as otherwise provided, GEPA applies to each applicable program
of ED, but does not apply to any contract made by ED. The section defines several terms,
including “applicable program,” which is defined to include any program for which the Secretary
of Education (hereafter referred to as the Secretary) or ED has administrative responsibility as
provided by law or by delegation of authority pursuant to law. Section 400 also states that nothing
in GEPA shall be construed to affect the applicability of statutes prohibiting discrimination,
including Title VI of the Civil Rights Act of 1964, Title IX of the Education Amendments of
1972, Title V of the Rehabilitation Act of 1973, and the Age Discrimination Act of 1975.3
Part A—Functions of the Department of Education
Part A of GEPA includes two sections. The first section addresses the general authority of the
Secretary, while the second section includes provisions related to an education impact statement.
Section 410. General Authority of the Secretary
This section confers regulatory authority on the Secretary. Specifically, it authorizes the Secretary
to “make, promulgate, issue, rescind, and amend rules and regulations” governing the operation
of ED and governing the applicable programs administered by ED.
Section 411. Education Impact Statement
This section specifies that any regulation affecting an institution of higher education (IHE) shall
only become effective if the regulation is published in the Federal Register with an educational
impact assessment statement. The statement shall determine whether any information required to
be provided under the regulation is already being collected or is available from another agency.
3
42 U.S.C. §§ 2000d et seq; 20 U.S.C. §§ 1681 et seq; 29 U.S.C. §§ 790 et seq; 42 U.S.C. §§ 6101 et seq.
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General Education Provisions Act (GEPA): Overview and Issues
Part B—Appropriations and Evaluations
Part B is divided into two subparts. The first subpart addresses appropriations and includes
Sections 420 through 423. The second subpart addresses the planning and evaluation of federal
education activities and includes Sections 424 through 429.
Section 420. Forward Funding4
In order to provide federal, state, and local officers “adequate notice” of the availability of federal
funds for carrying out ongoing education activities and projects, appropriations under any
applicable program may be included in the appropriations act for the fiscal year preceding the
fiscal year during which such activities and projects shall be conducted (e.g., appropriated funds
that are to be obligated during FY2011 may be appropriated in the FY2010 appropriations act).
Further, in order to provide for the provision of funds in this manner, the appropriations act for a
given year may contain separate appropriations for an applicable program for two consecutive
years (e.g., the FY2010 appropriations act could contain an appropriation of funds that are to be
obligated in FY2010 and an appropriation of funds that are to be obligated in FY2011).
Section 421. Availability of Appropriations on Academic- or School-Year Basis;
Additional Period for Obligation of Funds
Appropriations for applicable programs for any fiscal year may be made available for obligation
by the grantee on the basis of an academic or school year differing from such fiscal year, subject
to regulations by the Secretary.
In addition, unless specifically prohibited, any funds appropriated for an applicable program that
are not obligated and expended by the recipient educational agencies and institutions before the
end of the fiscal year shall remain available for obligation and expenditure for one additional
fiscal year.5 Funds so carried over are to be obligated and expended in accordance with program
requirements that are in effect for such succeeding fiscal year.
If funds appropriated to carry out any applicable program are not obligated until after the
institution of a judicial proceeding for release of such funds, then such released funds shall
remain available for obligation and expenditure until the end of the fiscal year that begins after
the termination of such judicial proceeding.
Section 422. Contingent Extension of Programs
If Congress, in the regular session that ends prior to the beginning of the terminal fiscal year of
authorization of appropriations of an applicable program, does not pass legislation extending the
program, the program is automatically extended for one additional fiscal year. The authorized
level of appropriations for the program for this additional year shall be the same as that for the
4
While this section is referred to as “forward funding,” the appropriations activity authorized by this section is more
commonly known as “advanced appropriations.” The difference between these two concepts is discussed at the end of
this report.
5
This provision is often referred to as the “Tydings amendment.” The additional year provided for the obligation and
expenditure of funds is often referred to as the “Tydings period.”
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General Education Provisions Act (GEPA): Overview and Issues
terminal year of the program. In addition, if the Secretary is required, in the terminal fiscal year of
an applicable program, to carry out acts or determinations necessary for the continuation of the
program, such acts or determinations must be made during the period of automatic program
extension. The automatic extension of an applicable program for one year does not apply to the
authorization of appropriations for a commission, council, or committee that is required by statute
to terminate on a specific date.
Section 423. Payments
Payments under any applicable program may be made in installments, and in advance or by way
of reimbursement, as determined by the Secretary. The payments may be adjusted to account for
overpayments or underpayments.
Section 424. Responsibility of States to Furnish Information
Each state educational agency (SEA) is required to submit a report to the Secretary every two
years that provides information with respect to the use of federal funds in the state for any
applicable program for the two preceding fiscal years, as well as the use of federal funds for
applicable programs administered by the state and provided to local educational agencies (LEAs).
Each SEA is required to include specific information in its report, including a list for each
applicable program of all grants made to and contracts entered into with LEAs and other agencies
within the state during each fiscal year. The Secretary is required to provide the information
contained in each report to the National Center for Education Statistics and to make the
information available, at a reasonable cost, to any interested individual. Further, in each year in
which reports are submitted by SEAs, the Secretary must submit to Congress a report
summarizing the data provided by the states.
Section 425. Biennial Evaluation Report
Not later than March 31, 1995, and every two years after such date, the Secretary is required to
submit an evaluation report to the House Committee on Education and Labor and the Senate
Committee on Labor and Human Resources6 on the effectiveness of applicable programs in
meeting their legislative intent and purposes during the two preceding fiscal years. The report
must contain specific information such as program profiles, information on the progress being
made toward program objectives, and significant program activities.
Section 426. Prohibition Against Use of Appropriated Funds for Busing
No funds appropriated for any applicable program may be used for the transportation of students
or teachers (or the purchase of equipment for such transportation) to overcome a racial imbalance
in any school or school system or to carry out a plan of racial desegregation, except for funds
appropriated for the Impact Aid program authorized by Title VIII of the ESEA.7
6
GEPA has not been updated to include the Senate Committee on Health, Education, Pensions, and Labor instead of
the Senate Committee on Labor and Human Resources.
7
Excluded from the Impact Aid provision is any portion of funds that is attributable to children counted under Section
8003(d) (i.e., certain children with disabilities) or residing on property described in Section 8013(10) (i.e., low-rent
(continued...)
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General Education Provisions Act (GEPA): Overview and Issues
Section 427. Equity for Students, Teachers, and Other Program Beneficiaries
The Secretary must require all applicants for assistance under an applicable program to describe
the steps the applicant will take to ensure equitable access to and equitable participation in the
activities to be conducted using such funds. Specifically, applicants must address the special
needs of program beneficiaries (e.g., students and teachers) in order to overcome barriers to
equitable participation, including “barriers based on gender, race, color, national origin,
disability, and age.”
Section 428. Coordination
The National Assessment Governing Board (NAGB), the Advisory Council on Education
Statistics, the National Education Goals Panel, and any other board established to “analyze,
address, or approve education content or student performance standards and assessments” are
required to coordinate their work to ensure that they do not duplicate one another’s efforts in
assisting states with education reform efforts.
Section 429. Disclosure Requirements
This section, which contains certain disclosure requirements, applies to “educational
organizations” that provide programs for a fee and that recruit students through means such as
commercial media, direct mailings, or referrals, but the section does not apply to LEAs, SEAs,
elementary or secondary schools as defined by the ESEA, IHEs as defined by the Higher
Education Act (HEA), or other specified educational entities. Under this section, covered
educational organizations must meet certain disclosure requirements prior to enrolling a minor
and accepting funds for the cost of a minor’s participation in an educational program (as defined
in Section 429) operated by the organization. The disclosure must be made in writing to the minor
or the minor’s parents and must address the method by which participants were solicited and
selected for participation in the program, as well as the cost of the program and information
regarding the distribution of any enrollment fee. Each educational organization must include a
“verifiable statement” in all of its recruitment or enrollment materials that the organization does
not discriminate against any individual with respect to employment; exclude any student from
participation in an educational program; discriminate against any student in providing program
benefits; or subject any student to discrimination based on race, disability, or residence in a lowincome area. The provisions of this section, however, do not entitle a student to participate in an
educational program or receive a benefit associated with a program or to receive a waiver of any
fee charged for participation or benefit. The section also includes enforcement provisions to
enable the Secretary to enforce the requirements of this section.
(...continued)
housing). For more information about the Impact Aid program, see CRS Report R40720, Federal Impact Aid: Title VIII
of the Elementary and Secondary Education Act, by (name redacted).
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General Education Provisions Act (GEPA): Overview and Issues
Part C—General Requirements and Conditions Concerning the
Operation and Administration of Education Programs
Part C is divided into four subparts. The first subpart addresses the general authority of the
Secretary and includes Sections 430 through 435. Subpart two focuses on administrative
requirements and limitations and includes Sections 436 through 439. The third subpart focuses on
the administration of education programs and projects by states and LEAs. It includes Sections
440 through 442. The final subpart addresses records, privacy, and limitations on withholding
federal funds. It includes Sections 443 through 447.
Section 430. Joint Funding of Programs
The Secretary is authorized to enter into arrangements with other federal agencies to jointly carry
out projects, to transfer to such agencies funds appropriated under any applicable program, and to
receive and use funds from such agencies for joint projects. Any funds transferred or received to
support joint projects must be used in accordance with the statutes authorizing the funds. The
project shall use the administering agency’s procedures to award and administer grants, unless the
agencies involved in the project agree to use another agency’s procedures. If the Secretary and
heads of other agencies participating in the joint project determine that the joint funding is needed
to address a special need consistent with the purposes and authorized activities of each of the
programs that provides funding for the project, a single set of criteria and single application may
be used to select grantees. The Secretary must notify the House Committee on Education and
Labor and Senate Committee on Labor and Human Resources8 not later than 60 days after
entering into a joint funding agreement with another agency.
The Secretary is also permitted to develop the criteria for and require the submission of joint
applications under two or more applicable programs that award competitive grants and may
jointly review and approve such applications separately from other applications submitted under
the individual programs, if the Secretary determines that joint awards are needed to address a
special need that is consistent with the purposes and authorized activities of each of the programs.
Applicants for a joint award must meet the eligibility criteria of each program.
Section 431. Collection and Dissemination of Information
The Secretary is required to prepare and disseminate information about applicable programs to
states, LEAs, and institutions and to cooperate with other federal officials who administer
education-related programs in disseminating information about said programs. The Secretary
must also inform the public about federally supported education programs. In addition, the
Secretary is required to collect data and information on applicable programs for the purpose of
obtaining objective measures of the effectiveness of such programs in achieving their intended
purposes.
8
See footnote 6.
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General Education Provisions Act (GEPA): Overview and Issues
Section 432. Review of Applications
This section establishes an appeals process to challenge certain SEA actions, including
disapproval of an application, failure to provide funding in accordance with the law, an order to
repay funds, or the termination of assistance. An applicant or recipient who is aggrieved by the
final action of an SEA with respect to an applicable program under which aid is provided to or
through the SEA may request a hearing within 30 days. The SEA must hold the hearing within 30
days of receiving such a request and issue a written ruling within 10 days after the hearing. If the
SEA determines that the final action was contrary to federal law, state law, or the rules,
regulations, and guidelines governing the applicable program, the final action must be rescinded.
If the applicant or recipient is dissatisfied with the final SEA ruling, it may, within 20 days,
appeal to the Secretary. On this appeal, findings of fact by the SEA will be considered final. The
Secretary may also issue interim orders to SEAs that the Secretary deems “necessary and
appropriate” pending resolution of the appeal or review. If the Secretary finds that the action of
the SEA was contrary to federal law or the program rules, regulations, and guidelines, the
Secretary shall order the SEA to modify its actions accordingly.
Each SEA is required to make available to each applicant or recipient all records that the SEA has
that pertain to the review or appeal of such applicant or recipient, including the records of other
applicants. If an SEA fails or refuses to comply with any of the requirements of this section, the
Secretary shall terminate assistance to the SEA under the applicable program or issue other orders
the Secretary deems appropriate to gain compliance.
Section 433. Technical Assistance
The Commissioner 9 is authorized, upon request, to provide advice, counsel, and technical
assistance to SEAs, IHEs, and, with the approval of the appropriate SEA, elementary and
secondary schools10 to determine benefits available to them; prepare applications and meet
program requirements; enhance the quality, increase the depth, or broaden the scope of activities
under applicable programs; and encourage the simplification of administrative procedures.
In addition, the Commissioner shall permit LEAs to use organized and systemic approaches in
determining cost allocation, collection, measurement, and reporting under any applicable program
if such methods do not lessen the program’s effectiveness and impact in achieving its intended
effect, if they ensure adequate program evaluation, and if they are consistent with audit criteria
prescribed by the Comptroller General of the United States.
In awarding contracts and grants for the development of curricula or institutional materials, the
Commissioner and the Director of the National Institute of Education11 shall encourage
dissemination of these materials; permit applicants to include provisions for reasonable
consultation fees or planning costs; and ensure that grants for publication and dissemination of
materials are awarded competitively to those who assure that the materials will reach the target
populations for which they were developed.
9
Statutory language for this section references the Commissioner of Education rather than the Secretary of Education.
This appears to be an oversight that may have occurred when the statute was amended to create ED.
10
Statutory language does not reference LEAs.
11
This appears to be an oversight that may have occurred when the statute was amended to create ED.
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General Education Provisions Act (GEPA): Overview and Issues
Section 434. Parental Involvement and Dissemination
Regulations promulgated by the Secretary for an applicable program shall encourage parental
participation in the program whenever the Secretary determines that this participation would
increase the effectiveness of the program. If the program for which such a determination is made
provides payments to LEAs, the applications for such payments must do the following:
•
set forth the policies and procedures to ensure that parents of the children to be
served in the program will be consulted and involved in the planning,
development, and operation of the program;
•
be submitted with an assurance that such parents have had an opportunity to
present their views of the application; and
•
set forth policies and procedures for dissemination of the program plans and
evaluations to such parents and the public.
Section 435. Use of Funds Withheld
If an LEA becomes ineligible for federal assistance under any applicable program due to a failure
to comply with certain federal laws that prohibit discrimination in federally funded programs or
activities on the basis of race, color, national origin, sex, disability, or age,12 the allotment or
reallotment of funds under said program to that state shall be proportionately reduced. Any funds
not allotted to a state because of the application of this provision may be used for the following
purposes: (1) to increase the allotments or reallotments of LEAs in that state that are not ineligible
to receive federal assistance as described above or to increase the allotments or reallotments of all
states in accordance with the federal law governing the program; or (2) for grants to LEAs of that
state for service training “in dealing with problems incident to desegregation”13 or for any other
program administered by ED that is designed to enhance equity in education or redress
discrimination on the basis of race, color, national origin, sex, age, or disability.
Section 436. Applications
The Secretary is authorized to provide that applications for assistance under an applicable
program are effective for more than one fiscal year. To the extent practicable, the Secretary is
required to establish uniform dates for the submission and approval of applications under all
applicable programs. In addition, to the extent practicable, the Secretary is required to develop
and require the use of common applications for grants to LEAs for each of the following three
types of programs:
•
formula grant programs administered by SEAs;
•
competitive or discretionary grant programs administered by SEAs; and
•
grant programs directly administered by the Secretary.
12
Title VI of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d et seq; Title IX of the Education Amendments of 1972,
20 U.S.C. §§ 1681 et seq; Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. §§ 790 et seq; or the Age
Discrimination Act of 1975, 42 U.S.C. §§ 6101 et seq.
13
42 U.S.C. 2000c-4.
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General Education Provisions Act (GEPA): Overview and Issues
For each of these three types of programs, the common application is required to be used as the
single application for as many of such programs as possible.
Section 437. Regulations
For the purposes of this section, a regulation is defined as “any generally applicable rule,
regulation, guideline, interpretation, or other requirement” that is prescribed by the Secretary or
ED and that is legally binding with respect to an applicable program. Regulations must contain
citations to the particular section of statutory law or other legal authority upon which relevant
provisions are based, and all regulations must be uniformly applied and enforced in all 50 states.
Although the Administrative Procedure Act, which establishes the process that agencies must
follow when enacting regulations, contains an exemption for matters pertaining to public
property, loans, grants, and benefits,14 GEPA specifies that this exemption shall apply only to
regulations that govern the first grant competition under a new or substantially revised program or
if the Secretary determines that the requirements of this subsection will cause “extreme hardship”
to the program beneficiaries affected by the regulations.
Within 60 days after the date of enactment of any act (or portion of an act) affecting the
administration of any applicable program, the Secretary is required to submit to the House
Committee on Education and Labor and Senate Committee on Labor and Human Resources15 a
schedule of when the Secretary plans to promulgate final regulations that the Secretary
determines are necessary to implement the act. All final regulations must be promulgated within
360 days after the date of enactment of such act. The Secretary is required to submit a copy of the
final regulations to the Speaker of the House of the House of Representatives and the President
pro tempore of the Senate concurrently with the publication of such regulations.
Section 438. Prohibition Against Federal Control of Education
This section clarifies that no provision of any applicable program is intended to authorize the
federal government to exercise any “direction, supervision, or control over the curriculum,
program of instruction, administration, or personnel of any educational institution, school, or
school system,” or over the selection of “library resources, textbooks, or other printed or
published instructional materials by any educational institution or school system.” Additionally,
no provision of any applicable program shall be construed to authorize the federal government to
require “the assignment or transportation of students or teachers in order to overcome racial
imbalance.”
Section 439. Labor Standards
All laborers and mechanics employed in construction projects and minor remodeling projects
assisted under any applicable program shall be paid at wage rates not less than those prevailing in
the locality for similar work as determined by the Secretary of Labor in accordance with the
Davis-Bacon Act, as amended. 16
14
5 U.S.C. § 553(a)(2).
See footnote 6.
16
40 U.S.C. §§ 276a et seq. For more information about the Davis-Bacon Act, see CRS Report R40663, The Davis(continued...)
15
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Section 440. State Agency Monitoring and Enforcement
This section establishes a mechanism for monitoring local agencies’ compliance with federal
education laws. The Secretary may require states to submit a plan for monitoring such
compliance with federal education program requirements for programs in which federal funds are
made available to local agencies through or under the supervision of a state board or agency. The
Secretary may require the state plan to provide for periodic visits by state personnel to programs
administered by local agencies to assess their compliance with federal requirements and periodic
audits of expenditures. In addition, the Secretary may require the state plan to provide that the
state investigate and resolve all complaints received by the state or referred to the state by the
Secretary with respect to program administration. In order to enforce federal requirements under
an applicable program, a state may withhold approval of an application by an LEA for assistance
under the program or suspend or withhold payments in whole or in part until the local agency
complies with the relevant federal requirements. 17 The withholding of payments may continue
until the local agency no longer fails to substantially comply with the federal requirements.
Section 441. Single State Application
For all applicable programs under which federal funds are provided to LEAs through SEAs, a
state shall submit a general application containing various assurances. The SEA has the option of
submitting the application jointly for all programs covered by the application, or it may submit
separately for each program or groups of programs. The general application must include the
following assurances:
•
each program will be administered in accordance with applicable statutes,
regulations, program plans, and applications;
•
control of funds and property acquired using program funds will be maintained
and administered by the appropriate public or nonprofit private agencies;
•
specified methods of administering each program will be adopted and used;
•
the effectiveness of each program in meeting its statutory objectives will be
evaluated at least once every three years, and the state will cooperate in carrying
out any evaluation of each program conducted by the federal government;
•
fiscal control and fund accounting procedures will be used to ensure proper
disbursement of, and accounting for, federal funds;
•
The state will make reports on the results of program evaluations as may be
needed by the Secretary to perform his duties under each program, and each state
(...continued)
Bacon Act and Changes in Prevailing Wage Rates, 2000 to 2008, by (name redacted).
17
The state may not disapprove an application unless the local agency has had an opportunity for a hearing and the
hearing finds that there has been “substantial failure” by the local agency in complying with any of the federal
requirements. Likewise, the state cannot suspend payments until 15 days after providing the local agency with an
opportunity to demonstrate why such an action should not be taken. Suspensions are limited to 60 days unless the state
provides a notice for a hearing within that 60-day period. Payments may be withheld if the state finds, after reasonable
notice and the opportunity for a hearing, that the local agency has “failed substantially” to comply with any of the
federal requirements.
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will maintain records (as required in Section 443) and provide access to these
records as the Secretary deems necessary to carry out his responsibilities;
•
the state will provide opportunities for the participation in, planning for, and
operation of each program by interested local agencies, institutions,
organizations, and individuals, including consulting with relevant committees,
local agencies, groups, and professionals in the development of program plans
required by statute and publishing each proposed plan at least 60 days prior to the
day on which the plan will be submitted to the Secretary or becomes effective
(whichever occurs earlier), allowing at least 30 days for public comments on the
plan; and
•
none of the funds expended under any applicable program will be used to acquire
equipment if such acquisition results in a direct financial benefit to any
organization representing the interests of the purchasing entity or its employees.
Such general application will be in effect for the entire duration of each program covered, unless
there are substantial changes in relevant federal or state law or “other significant changes in the
circumstances affecting an assurance in that application.”
Section 442. Single LEA Application
As with state applications to the Secretary addressed by Section 441, LEAs are required to submit
to state agencies a general application containing assurances required for all programs under
which federal aid is administered through a state agency. The application is required to cover all
such programs in which the LEA participates. Similar to the state applications, the LEA
application must include the following assurances:
•
each program will be administered in accordance with applicable statutes,
regulations, program plans, and applications;
•
control of funds and property acquired using program funds will be maintained
and administered by the appropriate public agency;
•
fiscal control and fund accounting procedures will be used to ensure proper
disbursement of, and accounting for, federal funds;
•
the LEA will make reports to the state agency or board and to the Secretary as
may be needed for the state agency or board and the Secretary to perform their
duties under each program, and each LEA will maintain records (as required in
Section 443) and provide access to those records as the state board or agency
Secretary deems necessary to carry out their responsibilities;
•
the LEA will provide opportunities for the participation in, planning for, and
operation of each program by teachers, parents, and other interested agencies,
organizations, and individuals;
•
applications, evaluations, plans, or reports related to each program will be made
available to parents and the public;
•
facilities constructed under any program will be consistent with overall state
construction plans and standards and with the requirements of Section 504 of the
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Rehabilitation Act of 1973 in order to ensure that the facilities are accessible to
and usable by individuals with disabilities;18
•
the LEA has adopted effective procedures for acquiring and disseminating
information and research regarding the programs and for adopting, where
appropriate, promising educational practices to teachers and administrators
participating in each program; and
•
none of the funds expended under any applicable program will be used to acquire
equipment if such acquisition results in a direct financial benefit to any
organization representing the interests of the purchasing entity or its employees.
Such general application will be in effect for the entire duration of each program covered, unless
there are substantial changes in relevant federal or state law or “other significant change [sic] in
the circumstances affecting an assurance in that application.”
Section 443. Records
This section imposes record-keeping requirements on recipients of federal education funds. Each
recipient shall maintain records that fully disclose the amount and disposition of such funds, the
total cost of the activity for which the funds are used, the share of that cost provided from other
sources, and other records that contribute to an effective financial or programmatic audit. Records
must be maintained for three years after the completion of the activity for which the funds are
used. Any records maintained by the recipient that are related to, or pertinent to, the program shall
be made accessible to the Secretary and the Comptroller General of the United States or their
representatives for the purpose of audit examination.
Section 444. Protection of the Rights and Privacy of Parents and Students
This section establishes the Family Educational Rights and Privacy Act (FERPA). The act,
sometimes referred to as the Buckley Amendment, guarantees parental access to student
education records, while limiting the disclosure of those records to third parties. Specifically,
educational agencies and institutions that receive federal funds must provide parents with access
to the educational records of their children. Likewise, FERPA prohibits educational agencies or
institutions that receive federal funds from having a policy or practice of releasing the education
records of a student without the written consent of his parents, although consent is not required
for the release of education records to certain individuals and organizations. For more information
on the detailed privacy protections, requirements, and exceptions contained in FERPA, see CRS
Report RS22341, The Family Educational Rights and Privacy Act (FERPA): A Legal Overview,
by (name redacted).
Section 445. Protection of Pupil Rights19
This section provides that instructional materials that are used as part of any applicable program
must be available for inspection by the parents or guardians of the children.
18
19
29 U.S.C. § 794.
This section does not supersede Section 444, Protection of the Rights and Privacy of Parents and Students.
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No student can be required, as part of any applicable program, to participate in a survey, analysis,
or evaluation that reveals information concerning political affiliations or beliefs; mental or
psychological problems; sex behavior or attitudes; illegal, anti-social, self-incriminating, or
demeaning behavior; critical appraisals of family members; legally recognized privileged or
analogous relationships (e.g., relationships with lawyers, physicians, and ministers); religious
practices, affiliations, or beliefs; or income without the prior consent of the student (if the student
is an adult or emancipated minor) or the prior written consent of the parent.
Except as previously discussed, an LEA that receives funds under any applicable program is
required to develop and adopt policies, in consultation with parents, regarding the following:20
•
the right of a parent to inspect a survey created by a third party prior to the
distribution or administration of the survey, and procedures for granting a
parent’s request for inspection within a reasonable time period;
•
arrangements to protect student privacy that are provided by the LEA in the event
that a survey is distributed or administered that contains any of the previously
discussed items requiring prior parent consent (or student consent, as
appropriate);
•
the right of a parent of a student to inspect any instructional material used as part
of the educational curriculum for the student, and procedures for granting a
parent’s request for inspection within a reasonable time period;
•
the administration of physical examinations or screenings that the school or LEA
may administer;21
•
the collection, disclosure, or use of students’ personal information that will be
used for marketing or be sold (or provided to others for those purposes); and
•
the right of a parent of a student to inspect any instrument used in the collection
of the aforementioned personal information prior to the distribution or
administration of the instrument, and procedures for granting a parent’s request
for inspection within a reasonable time period.
The LEA is required to notify parents about the aforementioned policies at least annually and
within a reasonable period of time following a substantive change to such policies. The LEA must
allow parents (or students, if of an appropriate age) to opt the student out of any activities
requiring notification (discussed below). The LEA is required to notify the parent of a student at
least annually at the beginning of the school year of the dates during the school year when
activities requiring notification are scheduled or expected to be scheduled.
The following activities require notification:
•
activities involving the collection, disclosure, or use of students’ personal
information that will be used for marketing or be sold (or provided to others for
those purposes);
20
An LEA is not required to develop and adopt new policies if the SEA or LEA had relevant policies in place on the
date of enactment of the No Child Left Behind Act of 2001 (P.L. 107-110).
21
This provision does not apply to a survey administered to a student in accordance with the Individuals with
Disabilities Education Act (IDEA).
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•
the administration of any survey that reveals the aforementioned information
(e.g., political affiliation, religious affiliation); and
•
any nonemergency, invasive physical examination or screening that is required
for students to attend school, is administered by the school and scheduled in
advance, and is not necessary to protect the immediate health and safety of the
student or other students.
The requirement that a policy be developed related to the collection, disclosure, or use of
students’ personal information does not apply if the information is used for the exclusive purpose
of developing, evaluating, or providing educational products or services for, or to, students or
educational institutions, such as college or other postsecondary education or military recruitment;
programs providing access to low-cost literacy products; curriculum and instructional materials
used in elementary and secondary schools; tests and assessments used by elementary and
secondary schools to provide “cognitive, evaluative, diagnostic, aptitude, or achievement” data
about students and the subsequent analysis and public release of aggregated data; or student
fundraisers for school-related or education-related activities.
The provisions related to the development of policies are not intended to preempt applicable
provisions of state law requiring parental notification and do not apply to any physical
examination or screening that is permitted or required by state law. The rights provided to parents
under this section transfer to a student when a student turns 18 years old or is considered an
emancipated minor under state law.
The Secretary is required to annually inform each SEA and each LEA of the agency’s obligations
under Section 444 and 445. Educational agencies and institutions are required to give parents and
students notice of their rights under Section 445. An SEA or LEA may use funds provided under
Title V-A of the ESEA to enhance parental involvement affecting the in-school privacy of
students.22
The Secretary is authorized to take any action the Secretary deems necessary to enforce the
provisions of this section, except that the Secretary may only terminate assistance provided under
an applicable program if the Secretary determines there has been failure to comply with the
requirements of Section 445 and compliance with the requirements cannot be obtained
voluntarily. In addition, the Secretary is required to establish or designate an office and review
board at ED to investigate, process, review, and adjudicate violations of the rights established
under this section.
Section 446. Limitation on Withholding Federal Funds
The refusal of an SEA, LEA, IHE, community college, school, agency offering a preschool
program, or other educational institution to provide personally identifiable data on students or
their families to any federal entity or other third party on the grounds that it violates the right to
privacy and confidentiality of students or their parents shall not constitute grounds for a
suspension or termination of federal assistance. 23 Such a refusal may not result in a denial of,
22
23
Title V-A last received appropriations in FY2007.
The provisions apply except as provided in subsection (b)(1)(D) of FERPA (Section 444).
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refusal to consider, or delay in the consideration of funding for such a recipient in subsequent
fiscal years.
Similarly, no assistance to an LEA may be limited, deferred, or terminated by the Secretary on the
grounds of noncompliance with Title VI of the Civil Rights Act of 1964 or any other
nondiscrimination provision of federal law without due process of law, 24 and it is unlawful for the
Secretary to limit or defer any financial assistance on the basis of a failure to comply with any
quotas on student admissions by an IHE or community college receiving federal financial
assistance.
Section 447. Prohibition on Federally Sponsored Testing
Notwithstanding any other provision of law (except as discussed below), no funds provided to ED
or to an applicable program may be used to “pilot test, field test, implement, administer or
distribute in any way any federally sponsored national test in reading, mathematics, or any other
subject that is not specifically and explicitly provided for in authoring legislation enacted into
law.”25 The exceptions to this provision include the Third International Mathematics and Science
Study (TIMSS)26 or other international comparative assessments that are administered to a sample
of students in the United States and foreign countries and developed under the authority of
Section 153(a)(6) of the Education Sciences Reform Act of 2002 (ESRA).27
Part D—Enforcement
Part D of GEPA contains 10 sections, all of which pertain to enforcement.
Section 451. Office of Administrative Law Judges
This section, which establishes an Office of Administrative Law Judges in ED, provides a
mechanism for challenging agency actions. Specifically, the Secretary is required to establish
such an office for the purpose of conducting hearings on the recovery of funds, withholding of
funds, cease and desist orders, or other proceedings that may be designated by the Secretary. The
judges shall be officers or employees of ED; must be appointed by the Secretary in accordance
with the Administrative Procedure Act (APA); and must meet the requirements for administrative
24
This provision requires at least 30-days prior written notice to the agency regarding the programs the Secretary finds
to be operating in noncompliance with a specific provision of federal law; the opportunity for a hearing before an
administrative law judge within 60 days; the conclusion of such hearing and the rendering of a decision within 90 days
from the commencement of such hearing, unless the judge finds that a decision cannot be rendered within that time
period, in which case the judge may extend such period for up to 60 days; the limitation of any deferral of federal
financial assistance to a period not to exceed 15 days after the rendering of the decision unless there was a finding that
the LEA failed to comply with any federal nondiscrimination requirements; and procedures established by the
Secretary to ensure the availability of sufficient funds (without regard to any fiscal year limitations) to comply with the
decision of such judge.
25
For example, the National Assessment of Educational Progress (NAEP) is specifically provided for in authorizing
legislation (Section 303 of the Education Sciences Reform Act of 2002).
26
This assessment is now known as the Trends in International Mathematics and Science Study.
27
Section 153(a)(6) of ESRA specifically authorizes ED to acquire and disseminate data on educational activities and
student achievement in the United States compared with foreign countries. The provision also references TIMSS.
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law judges set forth in the APA,28 which establishes uniform procedures that federal agencies
must follow when engaging in rulemaking, adjudication, or other actions.29 In selecting judges,
the Secretary is required to give “favorable consideration” to candidates with experience in SEAs
or LEAs and their knowledge of the administration of federal education programs in these
agencies. The Secretary is also required to designate one of the judges as the chief judge.
The chief judge shall assign a judge to each case or class of cases, although no judge may preside
over a case in which the judge has a conflict of interest with respect to the case. Each judge shall
review and may require that “evidence be taken on the sufficiency of the preliminary
departmental decision” as established in Section 452. The proceedings must be conducted
according to rules established by the Secretary through regulation that conform with hearing rules
under the APA.30 Likewise, costs and fees of parties are subject to the provisions of the APA. 31
If the judge determines that discovery may produce relevant information with respect to the case,
the judge may order a party to produce relevant documents, answer relevant written
interrogatories, and have depositions taken. The discovery period is limited to 90 days but may be
extended by the judge for good cause shown. If requested by any party, the judge may establish a
schedule for the discovery process. The judge is authorized to issue subpoenas and apply to the
appropriate U.S. court for enforcement of the subpoena.
Meanwhile, the Secretary is required to establish a process for the voluntary mediation of
disputes. All parties involved in mediation must agree to the mediation, and the mediator must be
independent of the parties to the dispute. Mediation is limited to 120 days, although the mediator
may grant extensions of this time period.
Finally, the Secretary is required to employ, assign, or transfer sufficient professional personnel
to ensure that all matters may be addressed in a timely manner.
Section 452. Recovery of Funds
This section establishes procedures that govern the recovery of funds from recipients. Whenever
the Secretary determines that a recipient of a grant or cooperative agreement under an applicable
program must return funds because the recipient has made an expenditure of funds that is not
allowable or has otherwise failed to account properly for such funds, the Secretary shall give the
recipient written notice of a preliminary departmental decision and notify the recipient of its right
to have that decision reviewed and to request mediation. In a preliminary departmental decision,
the Secretary bears the burden of establishing the prima facie case for the recovery of funds. The
facts to serve as the basis of the preliminary departmental decision may come from an audit
report, an investigative report, a monitoring report, or other evidence, and the amount of funds to
be recovered must be determined on the basis of Section 453. The failure by a recipient to
maintain records required by law, or to allow the Secretary access to such records, automatically
constitutes a prima facie case.
28
5 U.S.C. § 3105.
5 U.S.C. §§ 500 et seq.
30
5 U.S.C. §§ 554, 555, 557.
31
5 U.S.C. § 504.
29
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If a recipient receives written notice of a preliminary departmental decision and wants a review of
that decision, the recipient must submit to the Office of Administrative Law Judges (hereafter
referred to as the Office) an application for review not later than 60 days after receiving the
notice. The application must be in the form and contain the information specified by the Office. If
the Office determines that the Secretary has failed to establish a prima facie case for the recovery
of funds, the Office must notify the Secretary as expeditiously as possible so that the Secretary
can take appropriate action.
If a preliminary departmental decision requests a recovery of funds from a state recipient, the
state may not recover funds from an affected LEA unless that state recipient has transmitted a
copy of the preliminary departmental decision to any affected subrecipient within 10 days of
receiving such written notice and has consulted with each affected subrecipient to determine
whether the state should seek review by the Office.
In any proceeding before the Office, it is the recipient who bears the burden of demonstrating that
it should not be required to return the amount of funds for which recovery is sought in a
preliminary departmental decision. Hearings before the Office must occur within 90 days after
receipt of a request for review of a preliminary departmental decision, although this requirement
may be waived at the discretion of the judge for good cause. After the Office issues a decision,
parties to the proceeding have 30 days to seek review by the Secretary. Although the Secretary
may review a decision, he cannot alter the Office’s findings of fact if those findings are supported
by substantial evidence. 32 However, the Secretary, for good cause, may remand the case to the
Office to take further evidence, and the Office may subsequently make new or modified findings
of fact and may modify its previous action accordingly. Such new or modified findings of fact
shall likewise be conclusive if supported by substantial evidence.
If a recipient submits a timely application for review of a preliminary departmental decision, the
Secretary may not take any collection action until a decision of the Office upholding ED’s
preliminary decision in whole or in part becomes final agency action, which occurs 60 days after
the recipient receives written notice of the Office’s decision, with several exceptions. If the
Secretary modifies or sets aside the decision, the decision of the Secretary becomes final agency
action when the recipient receives written notice of the Secretary’s action. Alternatively, the
Secretary may remand the decision to the Office, in which case no final agency action has
occurred. The Secretary must publish decisions that have become final agency action in the
Federal Register or another appropriate publication within 60 days.
The Secretary is also prohibited from taking collection action if a recipient seeks judicial review
under Section 458 and that judicial review has not been completed. However, judicial review
does not affect the authority of the Secretary to take any other adverse action against a recipient.
The Secretary may collect from a recipient either the amount specified in a preliminary decision
for which review was not sought or the amount sustained in a decision by the Office or the
Secretary that becomes final agency action. However, the Secretary may compromise any
preliminary departmental decision that does not exceed the amount agreed to be returned by more
than $200,000, if the Secretary determines that the collection of any or all of the amount would
not be practical or be in the public interest and that the practice which resulted in the preliminary
32
During this review, any ex parte contact between the Secretary and individuals representing ED or the recipient is
prohibited.
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departmental decision has been corrected and will not recur. The Secretary is required to publish
in the Federal Register a notice of intention to compromise at least 45 days prior to doing so, and
such notice must provide interested persons an opportunity to comment on any proposed action.
Finally, recipients are not liable to return funds that were expended in an unauthorized manner
more than five years before the recipient received written notice of a preliminary departmental
decision, and no interest that arises during the administrative review process may be charged.
Section 453. Measure of Recovery
This section sets forth requirements that determine the amount of funds that may be recovered
from recipients. If a recipient makes an unallowable expenditure or otherwise fails to account
properly for funds, the recipient is required to return funds in an amount that is “proportionate to
the extent of the harm its violation caused to an identifiable Federal interest associated with the
program under which the recipient received the award.” Identifiable federal interests include, but
are not limited to serving only eligible beneficiaries; providing only authorized services or
benefits; complying with expenditure requirements and conditions; preserving the integrity of
planning, application, recordkeeping, and reporting requirements; and maintaining accountability
for the use of funds.
In addition, the amount of funds that may be recovered must be reduced by an amount that is
“proportionate to the extent the mitigating circumstances caused the violation.” Where mitigating
circumstances warrant, a judge is authorized to determine that no recovery is justified. SEAs and
LEAs bear the burden of demonstrating the existence of such mitigating circumstances, which are
deemed to exist only when it would be unjust to compel the recovery of funds because the SEA or
LEA: actually and reasonably relied upon erroneous written guidance provided by ED; made an
expenditure or engaged in a practice after the SEA or LEA submitted a written request for
guidance to ED with respect to the expenditure or practice at issue and ED failed to respond
within 90 days;33 or actually and reasonably relied upon a judicial decree issued to the recipient.
An SEA or LEA seeking to demonstrate the existence of mitigating circumstances must show the
following: the written request for guidance accurately described the proposed expenditure or
practice and included the facts necessary for a determination of its legality; the request contained
a certification by the chief legal officer of the SEA that such officer had examined the proposed
expenditure or practice and believed the proposed expenditure or practice was permissible under
applicable state and federal law; and the SEA or LEA reasonably believed that the proposed
expenditure or practice was permissible under applicable state and federal law.
When ED’s response to requests for guidance contain significant interpretations of applicable law
or policy, ED must disseminate such responses to SEAs. The Secretary is also required to
periodically review written requests for guidance to determine the need for new or supplementary
regulatory or other guidance under applicable programs.
33
If ED responds after 90 days, the SEA or LEA that submitted the request must comply with the guidance received at
the earliest practicable time.
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Section 454. Remedies for Existing Violations
This section establishes ED’s broad enforcement powers, which are set forth in more detail in
subsequent sections. If the Secretary has reason to believe that the recipient of funds under any
applicable program is failing to comply substantially with any legal requirement applicable to the
funds, the Secretary may withhold further payments; issue a complaint to compel compliance
through a cease and desist order; enter into a compliance agreement with the recipient; or take
any other action authorized by law. Regardless of whether the Secretary takes action under this
section, the Secretary shall not be precluded from seeking a recovery of funds under Section 452.
Section 455. Withholding
If the Secretary has reason to believe that the recipient of funds under any applicable program is
failing to comply substantially with any legal requirement applicable to the funds, the Secretary
may withhold from a recipient further payments (including payments for administrative costs).
Before withholding payments, the Secretary must notify the recipient in writing of the intent to
withhold payments, of the factual and legal basis for the Secretary’s belief that the recipient has
failed to comply substantially with a legal requirement, and of an opportunity for a hearing to be
held at least 30 days after the notification has been sent to the recipient.
The hearing must be held before the Office of Administrative Law Judges and conducted in
accordance with provisions in Section 451. Pending the outcome of the hearing and after the
recipient has been given reasonable notice and an opportunity to show cause why the suspensions
should not occur, the Secretary may suspend payments to the recipient, suspend the authority of
the recipient to obligate federal funds, or both. If the decision of the judge is supported by
substantial evidence, it shall be considered conclusive. The Secretary, however, for good cause
shown, may remand the case to the Office to collect additional evidence. Based on the new
evidence, the Office may make new or modified findings of fact and modify its previous action.
These new or modified findings shall be considered conclusive if supported by substantial
evidence. The decision of the Office in any hearing conducted under this section shall become
final agency action 60 days after the recipient receives written notification of the decision unless
the Secretary modifies or sets aside the decision (in which case the Secretary’s action shall
become final action when the recipient receives written notification of the action) or the Secretary
remands the decision to the Office.
Section 456. Cease and Desist Orders
Rather than withholding funds, as provided under Section 455, the Secretary may issue a
complaint that describes the factual and legal basis for the Secretary’s belief that the recipient has
failed to comply substantially with a legal requirement and may offer an opportunity for a hearing
to be held at least 30 days after the complaint has been served. The recipient has the right to
appear before the Office of Administrative Law Judges and show cause why an order to cease and
desist from the violation of law charged in the complaint should not be issued. Following the
hearing, if the Office is of the opinion that the recipient is in violation of any legal requirements
as charged in the complaint, the Office must prepare a report stating its findings and issue an
order requiring the recipient to cease and desist from the practice, policy, or procedure that led to
the violation. The report and order become the final agency action when they are received by the
recipient. The Secretary may enforce a final order that becomes final agency action by
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withholding any portion of the funds payable to the recipient under the applicable program or
certify the facts to the Attorney General, who shall take measures to enforce the order.
Section 457. Compliance Agreements
If the Secretary believes that a recipient of funds has failed to comply substantially with a legal
requirement, the Secretary may enter into a compliance agreement with the recipient. The goal of
the agreement is to bring the recipient into full compliance as quickly as possible and is not to
“excuse or remedy past violations” of legal requirements. Before entering into a compliance
agreement, the Secretary is required to hold a hearing at which the recipient has the burden of
making the case that full compliance cannot occur immediately. If the Secretary agrees, the
Secretary is required to state this finding in writing and publish the findings and the compliance
agreement in the Federal Register. The compliance agreement may not exceed three years from
the date of the Secretary’s written findings and must contain the terms and conditions with which
the recipient will comply until full compliance is achieved. If the recipient fails to meet the terms
of the compliance agreement, the Secretary may determine that the agreement is no longer in
effect and take another action authorized by law.
Section 458. Judicial Review
This section clarifies that recipients who are aggrieved by certain agency actions are entitled to
judicial review. Specifically, a recipient of funds under an applicable program that would be
adversely affected by the recovery of funds, fund withholding, or a “cease and desist” order and
any state entitled to receive funds under a program covered by a single state application (Section
441) whose application is denied by the Secretary may submit a petition for review of such action
to the U.S. Court of Appeals (hereafter referred to as the Court) in the relevant jurisdiction. The
Court shall consider the findings of fact by the Office of Administrative Law Judges to be
conclusive, if supported by substantial evidence. For good cause shown, the Court may remand
the case to the Office to take further evidence. Based on this evidence, the Office may make new
or modified findings of fact and may modify its previous action. These new or modified findings
of fact will also be considered to be conclusive, if supported by substantial evidence. The
judgment of the court is reviewable by the U.S. Supreme Court.
Section 459. Use of Recovered Funds
When funds obligated under an applicable program are recovered by the Secretary because the
recipient made a non-allowable expenditure of funds or failed to properly account for funds, up to
75% of the amount recovered may be returned to the affected recipient if the Secretary determines
that the following conditions are met:
•
the practices or procedures that led to the recovery of funds have been corrected
and the recipient is compliant with all other requirements of the program,
provided that the recipient was notified of any noncompliance with such
requirements and given a reasonable amount of time to correct the
noncompliance;
•
the recipient has submitted a plan to the Secretary for the use of the returned
funds under the requirements of the program and, to the extent possible, for the
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benefit of the population adversely affected by the earlier failure to comply with
such requirements; and
•
the use of the returned funds in accordance with the recipient’s plan would serve
the purposes of the program for which the funds were originally provided.
Any payment made under this section shall be subject to terms and conditions that the Secretary
considers necessary to accomplish the affected programs’ purposes, including the submission of
periodic reports on the use of funds and consultation by the recipient with representatives of the
population that will benefit from the payment.
The payments provided under this section shall remain available for expenditure for a period of
time established by the Secretary, but not to exceed more than three fiscal years following the
later of the fiscal year in which final agency action is taken if the parties filed a petition for a
review of a decision to recover funds (Section 452) or, if a recipient files a petition for judicial
review, the fiscal year in which final judicial action was taken under Section 458.
The Secretary is required to publish a notice of intent to use recovered funds for the
aforementioned purpose in the Federal Register at least 30 days before entering into such an
arrangement. The notice must specify the terms and conditions under which the payments will be
made, and a period of at least 30 days must be provided for public comment.
Section 460. Definitions
This section defines the terms “recipient” and “applicable program” for the purposes of Part D of
GEPA. The term “recipient” is defined to mean a recipient of a grant or cooperative agreement
under an applicable program. In contrast to the general definition of “applicable program,”
however, Part D defines the term to exclude programs authorized by the HEA and assistance
programs provided under the Act of September 30, 1950 (P.L. 81-874), and the Act of September
23, 1950 (P.L. 81-815); both P.L. 81-874 and P.L. 81-815 have been repealed. As a result,
although many of the Secretary’s powers and responsibilities under GEPA are applicable to higher
education programs, the Secretary’s enforcement authority under GEPA does not extend to the
HEA, which contains its own program-specific enforcement provisions. 34
Issues
This section discusses the practical application of several GEPA provisions and issues related to
these provisions.
Forward Funding and Advance Appropriations
Most appropriations are available for obligation during the federal fiscal year of the
appropriations bill. For example, most FY2010 appropriations will be available for obligation
from October 1, 2009, through September 30, 2010. Several applicable programs have
authorization or appropriations provisions that allow funding flexibility for program years that
34
See, for example, 20 U.S.C. § 1082.
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differ from the federal fiscal year. For example, many of the elementary and secondary education
formula grant programs receive appropriations that become available for obligation to the states
on July 1 of the same year as the appropriations, and remain available for 15 months through the
end of the following fiscal year. That is, FY2010 appropriations for some programs will become
available for obligation to the states on July 1, 2010, and will remain available until September
30, 2011.35 This budgetary procedure is popularly known as “forward” or “multi-year” funding,
and is accomplished through funding provisions in the annual Labor, Health and Human Services,
and Education, and Related Agencies (L-HHS-ED) appropriations bill.
Forward funding in the case of elementary and secondary education programs was designed to
allow additional time for school officials to develop budgets in advance of the beginning of the
school year. For Pell Grants for undergraduates, however, aggregate program costs for individual
students applying for postsecondary educational assistance cannot be known with certainty ahead
of time. Appropriations from one fiscal year primarily support Pell Grants during the following
academic year; that is, the FY2010 appropriations will be used primarily to support grants for the
2010-2011 academic year. Unlike funding for elementary and secondary education programs,
however, the funds for Pell Grants remain available for obligation for two full fiscal years.
An advance appropriation, as authorized by Section 421 of GEPA, occurs when the
appropriation is provided for a fiscal year beyond the fiscal year for which the appropriation was
enacted. For example, funds for obligation and expenditure in FY2011 are appropriated in the
FY2010 L-HHS-ED act. In the case of FY2010 appropriations, funds normally would have
become available October 1, 2009, under regular funding provisions, but may not become
available for some programs until July 1, 2010, under the forward funding provisions discussed
above. However, if the July 1, 2010, forward funding date for obligation was to be postponed by
three months—until October 1, 2010—the appropriation would be reclassified as an advance
appropriation since the funds would become available only in a subsequent fiscal year, FY2011.
Like forward funding provisions, these advance appropriations are specified through provisions in
the annual appropriations bill.
At the appropriations level, there is no difference between forward funded and advance
appropriations except for the period available for obligation. At the program or service level,
relatively little is changed by the three-month delay in the availability of funds, since most
expenditures for a standard school year occur after October 1. At the scorekeeping level,
however, a significant technical difference occurs because forward funding is counted as part of
the current fiscal year, and is therefore fully included in the current 302(b) allocation for
discretionary appropriations.36 Under federal budget scorekeeping rules, an advance appropriation
is not counted in the 302(b) allocation until the following year. In essence, a three-month change
from forward funding to an advance appropriation for a given program allows a one-time shift
from the current year to the next year in the scoring of discretionary appropriations.37 Thus,
Congress is able to provide funding for education and other programs in the appropriations for
35
As discussed previously and below, Section 421 of GEPA provides a one-year extension for the obligation and
expenditure of funds for applicable programs.
36
The 302(b) allocation for discretionary appropriations is the limit on discretionary appropriations set for each of the
appropriations bills by the House and Senate Committees on Appropriations. The House and Senate do not have to set
the same 302(b) allocations.
37
For more information about advance appropriations and forward funding, see CRS Report RS20441, Advance
Appropriations, Forward Funding, and Advance Funding, by (name redacted).
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General Education Provisions Act (GEPA): Overview and Issues
one fiscal year without having it count against the total amount available for discretionary
appropriations in that fiscal year.
Extension of the Period of Availability of Appropriations
Section 421 of GEPA extends the period of availability of appropriations by one fiscal year for
applicable programs. In practice, this section extends the period of obligation and expenditure of
funds for applicable programs from 12 or 15 months to 24 or 27 months, respectively, depending
on whether the program is forward funded. For example, if funds were made available on July 1,
2010, these funds would generally be available for obligation and expenditure until September
30, 2011. However, GEPA would extend the period for obligation and expenditure of these funds
until September 30, 2012. Thus, if funds are appropriated for FY2010, they would generally be
available for obligation and expenditure through September 30, 2010. While this provision may
be useful to SEAs and LEAs in program planning and budgeting, it may also have the effect of
providing additional time for funds to be expended in situations where the goal is to have funds
expended as quickly as possible. Under these circumstances, statutory language would need to
include provisions to override Section 421 of GEPA. For example, while funds made available
under the American Recovery and Reinvestment Act (ARRA, P.L. 111-5) for existing education
programs administered by ED were authorized for obligation and expenditure through FY2010,
Section 421 of GEPA automatically extended the period of obligation and expenditure for these
funds. If the intention of providing the funds was to have them be obligated and expended in the
year in which they were appropriated (i.e., FY2009), statutory language would have needed to be
included in ARRA to state that Section 421 of GEPA did not apply.
Automatic Extension of Program Authorizations for One Year
Section 422 of GEPA provides for the automatic extension of program authorizations for one year
under the conditions specified in the section. In practice, this provision has been used to extend
education programs authorized by major pieces of legislation, such as the Elementary and
Secondary Education Act and Higher Education Act, by one year. GEPA, however, only provides
for a one-year extension of program authorizations. If Congress does not act to reauthorize a
program within the one-year extension period granted by GEPA, the program is technically no
longer authorized. This does not mean, however, that a program that is no longer authorized may
cease to operate. In practice, as long as a program continues to receive appropriations, the
program is considered to be implicitly authorized.
For example, all current ESEA program authorizations expired after FY2007. These
authorizations were automatically extended, however, for one additional year under section 422
of GEPA. Thus, the authorization period for current ESEA programs was extended through
September 30, 2008. Section 422 of GEPA also specifies that the amount authorized to be
appropriated for a program during the extension shall be the amount that was authorized to be
appropriated for the program during the terminal fiscal year of the program. Thus, in the case of
the five ESEA programs with specific authorization levels for FY2007,38 those authorizations
remained the same for FY2008. While current ESEA programs are no longer authorized under
38
These programs include Title I, Part A Grants to Local Educational Agencies (LEAs); 21st Century Community
Learning Centers (21CCLC); State Grants for Innovative Programs; Voluntary Public School Choice; and the Fund for
the Improvement of Education.
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General Education Provisions Act (GEPA): Overview and Issues
specific statutory provisions, they are considered to be implicitly authorized, as the programs
have continued to receive appropriations.39
Prohibition on Federal Control of Education
Section 438 of GEPA explicitly states that no provision included in an applicable program is
intended to authorize the federal government to exercise control over curriculum, instructional
programs, administration, or school personnel or in the selection of printed material, or in the
assignment of transportation of students or teachers to overcome a racial imbalance. These
prohibitions, which are designed to maintain state and local control over education, are
particularly relevant to elementary and secondary education programs. While the federal
government provides funding to support education at the state and local levels, this support
cannot be conditioned on state educational agencies, local educational agencies, or schools
adopting specific curricula or instructional programs. 40 Thus, for example, the federal
government can require recipients accepting funds under a program designed to improve the
English language acquisition and proficiency of English language learners to implement
instructional programs that meet these goals, but the federal government is prohibited from
specifying which instructional programs or curricula must be used to meet these goals.
FERPA
Section 444 of GEPA, otherwise known as the Family Educational Rights and Privacy Act,
contains privacy requirements regarding access to and release of educational records. In practice,
most of the debate surrounding FERPA focuses on striking a balance between protecting student
privacy while simultaneously allowing schools to release educational records under special
circumstances. For example, FERPA does allow schools to release education records without
consent in connection with an emergency if the records are necessary to protect the health or
safety of the student or other persons. In the wake of the shootings at Virginia Tech in April 2007,
there have been several attempts to clarify FERPA’s health or safety exception. Indeed, under
recent amendments to the HEA, the Secretary is required to provide guidance clarifying rules
regarding disclosure when a “student poses a significant risk of harm to himself or herself or to
others, including a significant risk of suicide, homicide, or assault.” Such guidance must clarify
that institutions that disclose such information in good faith are not liable for the disclosure.41 In
addition, ED issued new regulations that contain similar clarifications regarding disclosure
requirements in the event of a threat to health or safety.42
Meanwhile, because FERPA allows, but does not require, postsecondary institutions to disclose
the final results of any disciplinary proceeding involving a crime of violence or a nonforcible sex
offense, similar efforts to expand disclosure by requiring the release of such records have
periodically been proposed. Indeed, recent amendments to the HEA essentially override FERPA’s
optional disclosure rule by requiring IHEs to disclose to the alleged victim of any crime of
violence or a nonforcible sex offense the results of any disciplinary proceeding conducted by the
39
United States General Accounting Office, Principles of Federal Appropriations Law, Third Edition, Volume I,
January 2004, pp. 2-69 through 2-71, http://www.gao.gov/special.pubs/d04261sp.pdf.
40
Similar prohibitions are included in the ESEA. See, for example, Sections 1905 and 9526(b).
41
P.L. 110-315, § 825.
42
Department of Education, Family Educational Rights and Privacy, 73 FR 74806 (December 9, 2008).
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General Education Provisions Act (GEPA): Overview and Issues
institution against a student who is the alleged perpetrator of such a crime or offense. If the
alleged victim is deceased as a result of such crime or offense, the next of kin of such victim shall
be treated as the alleged victim for purposes of disclosure.43
Prohibition on the Use of Funds to Support a National Test
Section 447 of GEPA contains a specific prohibition on the use of funds provided to ED or to an
applicable program being used to develop, implement, administer, or distribute a federally
sponsored national test in any subject, including reading or math, unless the test is specifically
provided for in enacted authorizing legislation. Thus, unless Congress acts to support a federally
sponsored national test in a subject area, the Secretary is prohibited from using funds for this
purpose. While the Secretary is prohibited from using funding to develop such tests, the Secretary
is not prohibited from providing federal funds to support or incentivize non-federally sponsored
efforts to develop a national or common test. For example, the Secretary has already indicated
that a portion of the competitive grant funds made available under Race to the Top, authorized by
Section 14006 of the American Recovery and Reinvestment Act (ARRA, P.L. 111-5), will be
used to support consortia of states working to develop new assessments linked to a set of common
standards.44 The largest effort being conducted in this area currently is a project being led by the
National Governors Association and the Council of Chief State School Officers to develop
common standards and assessments in reading and math.45
Author Contact Information
(name redacted)
Specialist in Education Policy
[redacted]@crs.loc.gov, 7-....
43
(name redacted)
Legislative Attorney
[redacted]@crs.loc.g
ov, 7-....
P.L. 110-315, § 493.
44
For more information, see http://www2.ed.gov/news/pressreleases/2009/10/10202009.html and http://www2.ed.gov/
programs/racetothetop-assessment/index.html.
45
For more information, see http://www.corestandards.org/ and http://www.nga.org/portal/site/nga/
menuitem.cb6e7818b34088d18a278110501010a0/?vgnextoid=87f7ad9817745210VgnVCM1000005e00100aRCRD.
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