28.620—Hearings.
(a) Opportunity for hearing.
Whenever an opportunity for a hearing is required
by § 28.615(c), reasonable notice shall be given
by registered or certified mail, return receipt
requested, to the affected applicant or recipient.
This notice shall advise the applicant or
recipient of the action proposed to be taken, the
specific provision under which the proposed action
against it is to be taken, and the matters of fact
or law asserted as the basis for this action, and
either:
(1)
Fix a date not less than 20 days after the
date of such notice within which the applicant or
recipient may request of the designated agency
official that the matter be scheduled for hearing;
or
(2)
Advise the applicant or recipient that the
matter in question has been set down for hearing
at a stated place and time. The time and place so
fixed shall be reasonable and shall be subject to
change for cause. The complainant, if any, shall
be advised of the time and place of the hearing.
An applicant or recipient may waive a hearing and
submit written information and argument for the
record. The failure of an applicant or recipient
to request a hearing for which a date has been set
shall be deemed to be a waiver of the right to a
hearing under 20 U.S.C. 1682 and § 28.615(c) and
consent to the making of a decision on the basis
of such information as may be filed as the
record.
(b) Time and place of hearing.
Hearings shall be held at the offices of the
Department in Washington, DC, at a time fixed by
the designated agency official unless the official
determines that the convenience of the applicant
or recipient or of the Department requires that
another place be selected. Hearings shall be held
before a hearing officer designated in accordance
with 5 U.S.C. 556(b).
(c) Right to counsel.
In all
proceedings under this section, the applicant or
recipient and the Department shall have the right
to be represented by counsel.
(d)
Procedures, evidence, and
record. (1) The hearing, decision, and any
administrative review thereof shall be conducted
in conformity with 5 U.S.C. 554-557 ( sections 5-8
of the Administrative Procedure Act), and in
accordance with such rules of procedure as are
proper (and not inconsistent with this section)
relating to the conduct of the hearing, giving of
notices subsequent to those provided for in
paragraph (a) of this section,
taking of testimony, exhibits, arguments and
briefs, requests for findings, and other related
matters. Both the Department and the applicant or
recipient shall be entitled to introduce all
relevant evidence on the issues as stated in the
notice for hearing or as determined by the hearing
officer at the outset of or during the hearing.
Any person (other than a Government employee
considered to be on official business) who, having
been invited or requested to appear and testify as
a witness on the Government's behalf, attends at a
time and place scheduled for a hearing provided
for by these Title IX regulations, may be
reimbursed for his or her travel and actual
expenses of attendance in an amount not to exceed
the amount payable under the standardized travel
regulations to a Government employee traveling on
official business.
(2)
Technical rules of evidence shall not apply
to hearings conducted pursuant to these Title IX
regulations, but rules or principles designed to
assure production of the most credible evidence
available and to subject testimony to test by
cross-examination shall be applied where
reasonably necessary by the hearing officer. The
hearing officer may exclude irrelevant,
immaterial, or unduly repetitious evidence. All
documents and other evidence offered or taken for
the record shall be open to examination by the
parties and opportunity shall be given to refute
facts and arguments advanced on either side of the
issues. A transcript shall be made of the oral
evidence except to the extent the substance
thereof is stipulated for the record. All
decisions shall be based upon the hearing record
and written findings shall be made.
(e)
Consolidated or Joint
Hearings. In cases in which the same or
related facts are asserted to constitute
noncompliance with these Title IX regulations with
respect to two or more programs to which these
Title IX regulations apply, or noncompliance with
these Title IX regulations and the regulations of
one or more other Federal departments or agencies
issued under Title IX, the designated agency
official may, by agreement with such other
departments or agencies where applicable, provide
for the conduct of consolidated or joint hearings,
and for the application to such hearings of rules
of procedures not inconsistent with these Title IX
regulations. Final decisions in such cases,
insofar as these Title IX regulations are
concerned, shall be made in accordance with §
28.625.