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INTRODUCTION

The  mission of the Office for Civil Rights (OCR) is to ensure equal access to  education and to promote education excellence throughout the nation through  vigorous enforcement of civil rights. The Case Processing Manual (CPM) provides  OCR with the procedures to promptly and effectively investigate complaints and  compliance reviews, issue findings, and to secure resolution agreements that  remedy discriminatory policies or practices identified by OCR.

Revised May   2008



**TABLE OF CONTENTS**

**Article I EVALUATION OF THE COMPLAINT**

Section 101 Determine What Constitutes a Complaint 
    Section 102 Assign a Case Number and Establish a File for Each 
    Complaint 
    Section 103 Acknowledge the Complaint
    
    Section 104 Determine Subject Matter Jurisdiction 
    Section 105 Determine Personal Jurisdiction 
    Section 106 Determine Whether the Complaint is Timely 
    Section 107  Determine Whether A Waiver Should Be Granted
    Section 108 Dismissal of Complaints 
    Section 109 Opening  the Complaint for Investigation 
    Section 110 Determine  Whether OCR Will Administratively Close a Complaint
  Section 111 Administrative  Closure of the Complaint
Section 112 Notification  Letter

**Article II EARLY COMPLAINT RESOLUTION (ECR)**

Section 201 Early  Complaint Resolution 
 Section 202 Informing  Parties of the Availability of the ECR Process
 Section 203 Successful  Conclusion of ECR
   Section 204 Investigative  Determination When ECR is Not Achieved

**Article III INVESTIGATION AND RESOLUTION OF THE COMPLAINT 
  AND ISSUING LETTERS OF FINDING**

Section 301 Case Planning 
    Section 302 Resolution  Agreement Reached During an Investigation 
    Section 303 Investigative  Determinations: Letters of Finding 
    
	Section 304 Guidelines  for Resolution Agreements
    Section 305 Letter  of Impending Enforcement Action 
  Section 306 Request for Reconsideration of OCR Determinations
  Section 307 Monitor  Post-Investigation Resolution Agreements
  Section 308 Notify  the Department of Justice (DOJ) or EEOC When Required

**Article IV INITIATING ENFORCEMENT ACTION**

Section 401 Initiate Administrative Proceedings Where Appropriate 
    
    Section 402 Refer to DOJ Where Appropriate 
    Section 403 Move to Enforcement for Denial of Access 
    Section 404 Move to Enforcement for Failure to Comply with 
OCR Agreement

**Article V COMPLIANCE REVIEWS**

Section 501 Compliance  Concerns Unrelated to the Original Complaint 
Section 502 Treating  a Complaint as a Compliance Review

**Article VI APPENDICES**

Section 601 Special Intake Procedures

(a) Age Discrimination Complaints

Employment  Complaints
Service  Complaints


(b) Title VI Complaints Against Proprietary Schools 
(c) Title VI and Title IX Employment Complaints 
(d) Title II ADA Complaints (Other than Employment) 
(e) Disability Employment Complaints

Referral or deferral
Retention


Section 602 Data Collection and Information Gathering

(a) Generally 
(b) OCR's Authority for Obtaining Information 
(c) Requests for Records

Data Request Letters
Timeframes for Recipient's Response
Data Provided by Recipient
Confidentiality


(d) Interviews

Introduction
Notice
Privacy
Interviews with Minors (Persons Under 18) or Legally Incompetent 
Individuals
Records of Interviews


(e) Limitations on Obtaining Information

Actions Constituting Denial of Access
Refusals to Provide Data or Access to Witnesses


Section 603 Freedom of Information Act and Privacy Act

Section 604 Recipients Operating Under Federal Court Order

(a) United States a Party
(b) United States Not a Party

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**Article I EVALUATE THE COMPLAINT**

If OCR determines that written information provided to the  U.S. Department of Education is a complaint, OCR will establish whether it has  sufficient information to proceed to investigation.  OCR will provide complainants with assistance  regarding the nature of their rights and of the OCR investigation process.  Additionally, OCR staff will provide  appropriate assistance to complainants who are persons with disabilities and  individuals of limited English proficiency.

To investigate the complaint, OCR  may need to collect and analyze personal information.  The Privacy Act of 1974, 5 U.S.C. § 552a, and  the Freedom of Information Act (FOIA), 5 U.S.C. § 552, govern the use of  personal information collected by OCR.  OCR  does not reveal the name or other personal information about an individual unless  it is necessary for completion of an investigation or for enforcement  activities against an institution that violates the laws, or unless such  information is required to be disclosed under the FOIA or the Privacy Act.

**Section 101 Determine What Constitutes a Complaint**

A  complaint is a written or electronic statement to the Department alleging that  the rights of one or more persons have been violated and requesting that the  Department take action.  Complaints may  be filed online as well as by mail, fax, or in person.  Some correspondence that OCR receives, even  if it concerns an alleged civil rights violation, may not be a complaint.  Upon receipt, OCR will determine whether or  not the correspondence is a complaint.   If a complaint is filed electronically, by e-mail or fax, a signed  consent form must be secured in addition to a complaint form.

The following are not complaints:

(a) Oral allegations that are not reduced to writing and signed; 
    (b) Anonymous correspondence; 
    (c) Courtesy copies of correspondence or a complaint filed with others; or 
    
(d)	Inquiries that seek advice or information but do not seek action or intervention from the Department.

The  complaint should include a written explanation of what happened; a way to  contact the complainant (if the complaint is filed by e-mail OCR must have the  complainant’s actual name and address); identification of the person or group  injured by the alleged discrimination; and identification of the person or  institution alleged to have discriminated.   Generally, statistical data alone are not sufficient to support a  finding of a violation, but may be sufficient to warrant an investigation when  presented in conjunction with other facts and circumstances.

**Section 102 Assign a Case Number and Establish 
  a File for Each Complaint**

The  case opening date is the date a complaint is received by the appropriate OCR  Enforcement Office.  Complaints received  by email or by fax over a weekend or on a holiday will be considered received  on the next workday.  Upon receipt by the  appropriate OCR Enforcement Office, OCR assigns the incoming complaint a case  number.  The Enforcement Office  establishes a case file for each complaint.   The complaint, however it was filed, must be included in the case file.

In  cases of multiple complaints, the following guidelines will be applied in  determining how many case numbers should be assigned:

(a) The  Enforcement Office will assign a separate case number to each recipient1named in the complaint.  If, during the  course of the investigation, OCR determines that other recipients are involved  in the alleged acts of discrimination, the Enforcement Office will open  separate complaints and assign a case number for each such recipient; the case  opening date for such complaints is the date on which OCR determines that other  recipients are involved.

(b) Complaints  from more than one person against the same recipient that contain different  allegations are treated as separate complaints.

(c) Complaints  filed by more than one person that raise substantially identical allegations  against the same recipient may be treated as one complaint and assigned one  case number or, if received later, incorporated into an existing  complaint.  If the complaints raise  distinct allegations, the Office should assign separate case numbers.

(d) New  allegations filed by the same person against the same recipient after complaint  resolution has begun are reviewed on a case-by-case basis to determine whether  the allegations should be added to the open complaint or treated as a new  complaint.

**Section 103 Acknowledge the Complaint**

OCR will promptly acknowledge receipt of the  complaint.  The complainant will be  informed that the complaint will be evaluated to determine whether OCR has  authority to investigate the allegations and that further communications about  the complaint will be forthcoming.  If  not already provided by the complainant, a consent form will be included with  OCR’s acknowledgement letter.  The  complainant will be informed that the complaint will be closed if written  consent is not received within 20 calendar days of the date of the  acknowledgement letter. The response will also include a copy of  “OCR Complaint Processing Procedures.”

When  disclosure of the identity of the complainant is necessary, OCR will require  written consent before proceeding.  OCR  does not need a specific form from the complainant, but does need written  confirmation that the complainant authorizes OCR to disclose the complainant’s  name.  A complainant filing on behalf of  another person is responsible for securing the written consent from that  individual, including when a parent files for a student over the age of  18.  Where the person is a minor (under  the age of 18) or a legally incompetent adult, the consent form must be signed  by that person’s parent or legal guardian.   Parental or legal guardian consent may not be required for persons under  the age of 18 if they are emancipated under state law and are therefore  considered to have obtained majority.   Proof of emancipation or incompetence must be provided.  The written consent should include an  assurance of cooperation with OCR’s investigation and complaint resolution activities.  OCR will inform the complainant that the  complaint will be closed if written consent is not received within 20 calendar  days of the date of request.  If OCR does  not receive such timely written consent, the complaint will be closed, and the  complainant informed in writing.

**Section 104 Determine Subject Matter Jurisdiction**

OCR must have  jurisdiction over the subject matter of the complaint.  For OCR to establish jurisdiction, the  complaint must allege, or OCR must be able to infer from the facts given, an  allegation of: 1) discrimination based on race, color, national origin, sex,  disability or age, 2) discrimination in violation of the Boy Scouts  of America Equal Access Act of 2001, or 3) retaliation for the purpose of  interfering with any right or privilege secured by the civil rights laws  enforced by OCR, or as a result of making a complaint, testifying, or  participating in any manner in an OCR proceeding.  34 C.F.R. §§ 100.7(e), 104.61, 106.71, 108.9,  110.34; 28 C.F.R. § 35.134.

OCR has jurisdiction under the following statutory authorities:

**(a) Title VI of the Civil Rights Act of 1964**, 
  42 U.S.C. §§ 2000d et seq., 34 C.F.R. Part 100

Under  Title VI, OCR has jurisdiction to investigate complaints involving individuals  covered by the law (e.g., applicants, students, parents) and certain employment  complaints based on race, color, or national origin.  With respect to employment, OCR has  jurisdiction if (1) the alleged discrimination could adversely affect program  beneficiaries on the basis of race, color, or national origin, or (2) a primary  objective of the federal financial assistance is to provide employment.  See Section 601(b) for processing Title VI  complaints with respect to proprietary vocational schools.  For employment complaints, OCR follows  procedures consistent with the employment coordinating regulations; 28 C.F.R.  Part 42 and 29 C.F.R. Part 1691.  See  Section 601(c) regarding these procedures.

**(b) Title IX of the Education Amendments of 1972**, 
  as amended, 20 U.S.C. §§ 1681 et seq., 34 C.F.R. Part 106

Under  Title IX, OCR has jurisdiction to investigate complaints involving individuals  covered by the law (e.g., applicants, students, parents) and employment  complaints based on sex that involve educational programs and activities.  For employment complaints, OCR follows  procedures consistent with the employment coordinating regulations; 28 C.F.R.  Part 42 and 29 C.F.R. Part 1691.  See Section 
  601(c) regarding these procedures.

**(c) Section 504 of the Rehabilitation Act of 1973**, 
  as amended, 29 U.S.C. § 794, 34 C.F.R. Part 104

Under  Section 504, OCR has jurisdiction to investigate complaints involving  individuals covered by the law (e.g., applicants, students, parents) and  employment complaints based on disability.   For employment complaints, OCR follows procedures consistent with the  employment coordination regulations at 28 C.F.R. Part 37 and 29 C.F.R. Part  1640, which address coordinating disability employment complaints with DOJ and  EEOC.  See Section 601(e) regarding these procedures.

**(d) Age Discrimination Act of 1975**, 42 U.S.C. 
  §§ 6101 et seq., 34 C.F.R. Part 110

Under  the Age Discrimination Act, OCR has jurisdiction to investigate complaints  involving individuals covered by the law (e.g., applicants, students, parents). See Section 
  601(a)2for  instructions regarding referral of complaints to the Federal Mediation and  Conciliation Service (FMCS) before investigation.  OCR does not have jurisdiction over  employment under the Age Discrimination Act. See Section 
  601(a)(1) for procedures on referral to EEOC.

**(e) Title II of the Americans with Disabilities Act 
  of 1990**, 42 U.S.C. §§ 12131 et seq., 28 C.F.R. Part 35

Under  Title II, OCR has jurisdiction to investigate complaints involving individuals  covered by the law (e.g., applicants, students, parents) and employment  complaints based on disability. For employment complaints, OCR follows  procedures consistent with the employment coordination regulations at 28 C.F.R.  Part 37 and 29 C.F.R. Part 1640, which address coordinating disability  employment complaints with DOJ and EEOC. (See Section 
  601(e) regarding these procedures.)

**(f) Boy Scouts of America Equal Access Act of 2001**, 
  20 U.S.C. § 7905, 34 C.F.R. Part 108

Under  the Boy Scouts Act, OCR has jurisdiction to investigate complaints involving  the denial of equal access or a fair opportunity to meet to, or discrimination  against, any group officially affiliated with the Boy Scouts of America or  officially affiliated with any other youth group listed in Title 36 of the  United States Code.

**Section 105 Determine Personal Jurisdiction**

OCR  must also have jurisdiction over the institution alleged to have  discriminated.  Under Title VI, Title IX,  Section 504, and the Age Discrimination Act, OCR has jurisdiction over institutions  that receive federal financial assistance from the Department and institutions  for which OCR has been delegated authority from other federal agencies.  Under Title II, OCR has jurisdiction over  public elementary and secondary education systems and institutions, public  institutions of higher education and vocational education (other than schools  of medicine, dentistry, nursing, and other health-related schools), and public  libraries – regardless of whether these institutions receive federal financial  assistance. Under the Boy Scouts Act, OCR has jurisdiction over public  elementary schools, public secondary schools, local educational agencies and  State educational agencies that receive funds made available through the  Department. If a complaint is filed against an institution OCR does not cover  or does not state a claim under the statutes identified above, OCR will not  proceed further.  When appropriate, the  Enforcement Office will refer the complaint****to the appropriate agency.

**Section 106 Determine Whether 
  the Complaint is Timely**

OCR  will take action only with respect to those complaint allegations that have  been filed within 180 calendar days of the date of the last act of alleged  discrimination unless the complainant is granted a waiver under Section  107.  The filing date of a complaint is  the earlier of the following:

(a) the  date the complaint is received by any Department office; or
  (b) for  Title II complaints referred from DOJ, the date the complaint is received by  DOJ.

Timely complaints may include  those where the complainant alleges a continuing discriminatory policy or  practice.  The person or team evaluating  the complaint shall make the determination of the existence of a continuing  discriminatory policy or practice, in consultation with legal staff

**Section 107** **Determine Whether a Waiver Should be 
Granted**

If a complaint is not filed in a timely manner, OCR will notify the complainant 
    of the opportunity to request a waiver. The Office Director, or designee, 
    may grant a waiver of the 180-day filing requirement under any of the following 
circumstances:

(a) The  complainant could not reasonably be expected to know the act was discriminatory  within the 180-day period, and the complaint was filed within 60 days after the  complainant became aware of the alleged discrimination;

(b) The  complainant was unable to file a complaint because of incapacitating illness or  other incapacitating circumstances during the 180-day period, and the complaint  was filed within 60 days after the period of incapacitation ended;

(c) The  complainant filed a complaint alleging the same discriminatory conduct within  the 180-day period with another federal, state, or local civil rights  enforcement agency, and filed a complaint with OCR within 60 days after the  other agency had completed its investigation or notified the complainant that  it would take no further action;

(d) The  complainant filed, within the 180-day period, an internal grievance with a  recipient of federal financial assistance, or a due process hearing, alleging  the same discriminatory conduct that is the subject of the OCR complaint, and  the complaint is filed no later than 60 days after the internal grievance is  concluded;

(e) The  complainant was unable to file an internal grievance with the recipient because  the recipient did not maintain and publish required grievance procedures; or

(f) Unique  circumstances generated by OCR’s action have adversely affected the  complainant.

If  a waiver is not requested or requested but not granted, the case will be closed  and the complainant informed of the decision.

**Section 108 ****Dismissal of Complaints**

If  OCR decides not to open a complaint for investigation or to continue with an  investigation for any of the reasons identified in Sections 104, 105, 106, 107,  and/or 109 it will dismiss the complaint.

**Section 109 ****Opening  the Complaint for Investigation**

OCR  will open for investigation all allegations, which, if true, would constitute a  violation of one of the laws it enforces.

OCR will dismiss the complaint if it is so  incoherent that, as a whole, it cannot be considered to be grounded in fact. If  the allegations as stated by the complainant are unclear, OCR will contact the  complainant by phone, in writing, or via electronic mail to request information  that will assist OCR in understanding the basis for the complaint. OCR will dismiss the complaint if the  information is not received within 20 calendar days of the date of the request.  If the complaint is dismissed for failure to provide necessary information  within the stated time period, the complainant will be so informed in writing.

If  during this contact the complainant confirms that the allegations are not  within OCR’s jurisdiction, OCR will dismiss the complaint. The manner and date  by which the complainant confirms that the allegations are not within OCR’s  jurisdiction shall be documented in the case file.

**Section 110 Determine  Whether OCR Will Administratively Close a Complaint2**

OCR  will close a complaint for the following reasons:

(a) The  complaint has been investigated by another federal, state, or local civil  rights enforcement agency or through a recipient’s internal grievance  procedures, including due process proceedings, and the resolution of the  complaint meets OCR regulatory standards; *i.e.,* all allegations were  investigated, appropriate legal standards were applied, and any remedies  secured meet OCR’s standards.

(b) The  complaint allegations are foreclosed by previous decisions of the federal  courts, the U.S. Secretary of Education, or the U.S. Department of Education’s  Civil Rights Reviewing Authority.

(c) The  complaint allegations are foreclosed by OCR policy determinations. (e.g., OCR’s  policy to refrain from assessing the appropriateness of decisions made by a  group of knowledgeable persons convened pursuant to Section 504, or to refrain  from assessing the appropriateness of pedagogical decisions.)

(d) OCR  obtains credible information indicating that the allegations raised by the  complaint have been resolved, and there are no class-wide allegations.  In such a case, OCR will attempt to ascertain  the apparent resolution.  If OCR  determines that there are no current allegations appropriate for further  complaint resolution, the complaint will be closed.

(e) The  Enforcement Office determines that its ability to complete the investigation is  substantially impaired by the complainant’s or injured party’s refusal to  provide information that is reasonably accessible to the complainant and is  necessary for investigation of the complaint.

(f) The  same allegations have been filed by the complainant against the same recipient  with state or federal court.  An OCR  complaint may be re-filed within 60 days following termination of the court  proceeding if there has been no decision on the merits or settlement of the  complaint allegations.  (Dismissal with  prejudice is considered a decision on the merits.)

(g) The  same allegations have been filed by the complainant****against the same  recipient with another federal, state, or local agency, or through a  recipient’s internal grievance procedures, including due process proceedings,  and OCR anticipates that there will be a comparable resolution process under  comparable legal standards; *i.e*., all allegations will be investigated,  appropriate legal standards will be applied, the same remedies are available to  the complainant, and remedies secured will meet OCR’s standards.  OCR will advise the complainant that she or  he may re-file within 60 days of the completion of the other entity’s  action.  Generally, OCR will not conduct  its own investigation; instead, OCR reviews the results of the other entity’s  determination and determines whether the other entity provided a comparable  process and met appropriate legal standards.

In addition, OCR may close a complaint for the following reasons:

(h) The  complaint is a continuation of a pattern of previously filed complaints  involving the same or similar allegations against the same recipient that have  been found to be without merit by OCR.

(i) The  same issues involving the same recipient have been addressed in a recent OCR  compliance review.

(j) The  complainant withdraws the complaint.

(k) OCR  transfers or refers the complaint to another agency for investigation.  For clarification see  Section 601, Special Intake Procedures.

(l) The  death of the complainant or injured party makes it impossible to investigate  the allegations fully, or when the death of the complainant or injured party  forecloses the possibility of relief because the complaint involved potential  relief solely for the complainant or injured party.

(m) The  allegations are moot because:

There  are no current allegations appropriate for further investigation and  resolution;
There  are no class-wide allegations; and
There  is no need for the recipient to change its policies or procedures in order to  protect against a future violation.3


**Section 111 Administrative  Closure of the Complaint**

If  OCR closes a complaint for any of the reasons identified in Section 110, it  will issue a letter of administrative closure to the complainant and the  recipient explaining the reason for the decision.  Closures under Section 110 will be approved  by the Chief Attorney, or a person specifically designated to act on behalf of  the Chief Attorney.

**Section 112 Notification  Letter**

When  OCR opens a case for investigation, it will issue letters to the complainant  and recipient that state the following:

(a) the  basis for the complaint; 
  (b) a brief statement of the allegations over  which OCR has jurisdiction; 
  (c) a  brief statement of OCR’s jurisdiction over the complaint; and 
(d)	an  indication of when the parties will be contacted.

“OCR  Complaint Processing Procedures” must be issued with the letter to the  recipient.

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**Article II EARLY COMPLAINT RESOLUTION (ECR)**

The  Early Complaint Resolution (ECR) process facilitates the voluntary resolution  of complaints by providing an early opportunity for the parties involved to  resolve the allegations.

**Section 201 Early  Complaint Resolution**

**(a) OCR's Role**

To  serve as facilitator, upon request of both parties;
    To  inform the parties of the procedures, establish a constructive tone, and  encourage the parties to work in good faith toward a mutually acceptable  resolution;
    To  maintain an impartial approach and inform the parties that OCR will not insist  on particular terms or any specific resolution;
    To review the allegations and make sure the parties understand the issues that OCR has accepted for investigation, and, as appropriate, facilitating an understanding of pertinent legal standards and possible remedies;
    To facilitate a discussion between the parties  regarding possible actions that the parties may consider in working toward a  resolution; and
    To  offer assistance, as appropriate, with regard to reducing any resolution to  writing.  If an agreement is reached, the  parties are informed that OCR will issue a closure letter reflecting the  voluntary resolution of the complaint by agreement of the parties.


**(b) Role of the Participants**

To  participate in the discussions in good faith;
    To  consider offers or suggestions with an open mind and to work constructively  toward a mutually acceptable resolution; and
    To  implement any agreement in good faith.


ECR  may take place at any time during the investigative process. OCR does not sign,  approve, or endorse any agreement reached between the parties.  However, OCR will assist both parties in  understanding pertinent legal standards and possible remedies.

**Section 202 Informing  Parties of the Availability of the ECR Process**

If  the Office Director determines that ECR is appropriate and the complainant and  the recipient are willing to proceed, the Office Director will designate staff  to facilitate an agreement between the recipient and complainant. Staff  assigned to conduct ECR of a complaint shall not be staff assigned to the  investigation of that complaint.

In order to maintain confidentiality of the  ECR process, any notes taken during ECR by the facilitator and/or any records  or other documents offered by either party to the facilitator during ECR will  be kept in a separate file and will not be shared with the staff 
 member(s)  assigned to investigate the complaint.

The period of time that a complaint is in the  ECR process (i.e., from the date of approval for ECR by the Office Director to  the date of the termination of ECR) shall not count in the 180-day GPRA  standard period of time for completion of the investigation of the  complaint.  However, the Office Director  is responsible for ensuring that ECR proceeds without undue delay and that ECR  is terminated as soon as it is clear that the parties will not succeed in  resolving the complaint.

**Section 203 Successful  Conclusion of ECR**

At  the conclusion of ECR, OCR will obtain a copy of a statement that the  allegation has been resolved, signed by the complainant, or a copy of any  settlement agreement that has been signed by the complainant.  Once resolution of any allegation has been  obtained, OCR will notify the parties in writing that the allegation(s) has or  have been resolved; other outstanding issues, if any, are to be resolved  through the investigation and resolution process.  (See Article III.)  A copy of any agreement between the parties  will be attached to the resolution letter.

**(a)****Breach  of Agreements**

OCR  will not monitor the agreement but will inform the parties that if a breach  occurs, the complainant has the right to file another complaint.  If such a new  complaint is filed, OCR will address the original allegations and will not  address the alleged breach of the agreement.   To be considered timely, the new complaint must be filed either within  180 days of the date of the original discrimination or within 60 days of the  date the complainant obtains information that a breach occurred, whichever date  is later.

**Section 204 Investigative Determination When ECR is Not Achieved**

The  office will monitor the process of ECR to ensure adequate time for completion  of the investigation in the event that ECR is unsuccessful.  Where appropriate, investigation should  proceed to ensure completion in accordance with normal case processing  standards and timelines.

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**Article III INVESTIGATION  OF THE COMPLAINT**

OCR  will ensure that investigations are legally sufficient and that they are  dispositive of the allegations raised in the complaint. OCR will keep the  parties informed of the progress in investigating a complaint and will  communicate with the parties regularly regarding the status of any  complaint.  OCR staff will return the  parties’ telephone calls promptly, generally by the end of the following  business day.  OCR staff will acknowledge  receipt of the parties’ substantive letters and emails promptly, and, where a  response is needed, provide a response to those letters and emails in a timely  manner.  These communications must be  documented in the case file.

**Section 301 Case Planning**

Case planning will begin as early as possible, will be thorough, and  will be conducted throughout the life of every case to ensure high quality  decisions, prompt investigations and efficient use of OCR resources.  Planning decisions will reflect sound legal  standards and will be adjusted as necessary to take into account new  information obtained during case processing.   Management is accountable for effective planning and will participate in  critical planning decisions commensurate with the nature and complexity of the  case, to ensure consistent high quality casework.

The following essential elements of case planning will be addressed in  every OCR case and placed in the file (unless inapplicable):

(a) Allegation(s)
  (b) OCR’s jurisdiction over subject matter and parties
  (c) Legal issue(s) 
  (d) Investigation strategy 
(e) Resolution agreement

The case file will contain documentation that supports the decisions  made with respect to each of the applicable essential planning elements.   Planning documentation should be organized so that it can be readily  located in the case file.  In routine  closures under Article I provisions, the required documentation may be  satisfied by the closure letter.

OCR staff will carefully plan all settlement activities.  These planning activities will ensure accountability for high quality and consistency with OCR standards and will address:

(a) required action(s) to achieve compliance, 
(b) dates for completion of specific actions,
(c) verification/reporting requirements (e.g. a description of specific data, 
documentation and other needed information),
(d) dates for reporting to OCR, and
(e) efficient resource use including:

verification methods (e.g. reports/ reviews and/or onsite visits); and
reporting requirements.


**Section 302 Resolution  Agreement Reached During an Investigation**

A complaint may be  resolved when, before the conclusion of an investigation, the recipient asks to  resolve the complaint.  Such a request to  resolve the complaint during the course of an investigation must be approved by  the Office Director. If approved, OCR will immediately notify the complainant  of the recipient’s request and will keep the complainant informed throughout  all stages of this resolution process.   The provisions of the resolution agreement will be aligned with the  complaint allegations or the information obtained during the investigation, and  will be consistent with applicable regulations.   A copy of the resolution agreement will be included with the resolution  letter. (See Section 304.)

**Section 303 Investigative  Determinations: Letters of Finding**

At  the conclusion of the investigation, OCR will determine that:

> there is insufficient evidence to support a conclusion of noncompliance; or
>   there is sufficient evidence to support a conclusion of noncompliance.
> (For  recipients operating under federal court order see Section 604.)

All  letters of finding(s) that make a determination under  Title II of the Americans with Disabilities Act will include the following  language: “The complainant may file a private suit pursuant to section 203 of  the Americans with Disabilities Act, whether or not OCR finds a violation of  Title II.”

**(a) Insufficient Evidence Determination**

When  OCR determines that the evidence does not support a conclusion that the  recipient failed to comply with applicable regulations, OCR will issue a letter  of finding(s) to the parties.  The letter  of finding(s) must include:

a  statement of the issues raised by the complaint;
    a  statement of OCR’s jurisdiction over the complaint; and
    clear  explanation of the pertinent legal standard and factual analysis.


The  case file will include an index of documents in the file and a key referencing  by tab of the evidence relied upon in making the determination.

The  letter of finding(s) must be approved and signed by the Chief Attorney, or the  Chief Attorney’s designee.

**(b) Non-Compliance  Determination**

When  by a preponderance of the evidence OCR determines that the recipient failed to  comply with applicable regulations, OCR will contact the recipient and will  attempt to secure the recipient’s willingness to negotiate a resolution  agreement. If the recipient does not indicate that it is willing to negotiate a  resolution agreement, OCR will inform the recipient that it has 30 calendar  days within which to indicate its willingness to do so. OCR will further inform  the recipient that if it does not indicate its willingness to voluntarily  resolve the identified areas of non-compliance within 30 calendar days, OCR  will issue a letter of finding(s).

If  OCR has entered into negotiations with a recipient, and the Office Director, in  consultation with the appropriate Enforcement Director, determines that the  negotiations have reached an impasse, OCR will notify the recipient of the  impasse and will inform the recipient that it will issue a letter of finding(s)  in 10 calendar days if a resolution agreement is not reached.  OCR may continue negotiating during this 10  calendar day period if it is deemed advisable by the Office Director.

This  communication with the recipient must be memorialized in the case file.

The  letter of finding(s) to the parties must include:

a  statement of the issues raised by the complaint;
    a  statement of OCR’s jurisdiction over the complaint; and
    clear  explanation of the pertinent legal standard and factual analysis.


The case file will include an index of documents in  the file and a key referencing by tab of the evidence relied upon in making the  determination.

The letter of finding(s) must be  approved by the Chief Attorney, the Office Director, the appropriate  Enforcement Director and the Deputy Assistant Secretary for Enforcement, and  signed by the Chief Attorney, or the Chief Attorney’s designee

If, following the expiration of  the 30 calendar day period or the 10 calendar day period referenced in this  subsection and the issuance of a letter of finding(s), the recipient has  refused to make a commitment to voluntarily resolve the identified areas of  noncompliance, the Enforcement Office will follow the procedures set forth in  34 C.F.R. § 100.8. (See also Section 305.)

**Section 304 Guidelines  for Resolution Agreements**

Whenever OCR enters into a  resolution agreement a Statement of the Case is required, which the Chief  Attorney or designee must approve. The statement of the case sets out the  issues investigated; OCR’s basis for entering into a resolution agreement; and  an explanation of how the terms of the agreement are aligned with the issues  investigated and are consistent with applicable regulations.  A cross-reference and/or key to the evidence  in the case file will also be included.

The  resolution agreement must be consistent with policy and aligned with the  identified violation.  The complaint will  be considered resolved and the recipient deemed compliant if the recipient  enters into an agreement that, fully performed, will remedy the identified  violations.  A copy of the agreement will  be included with the resolution letter.

Resolution agreement planning will be  documented in the case file either separately or by reference to the resolution  agreement. OCR staff shall notify the Deputy Assistant Secretary for  Enforcement or his or her designee of its intent to enter into negotiations  concerning the terms of the proposed resolution agreement. If the Enforcement  Office has not received a response from the DAS or designee to the notification  of its intent to enter into negotiations within three business days of the date  the notification was sent, the enforcement office may infer authorization to  proceed with negotiations.

(a) Resolution  Agreements:

> Must  be signed by a person with authority to bind the recipient;
>       Must  be approved by the Chief Attorney or a person specifically designated as acting  on his/her behalf;
>       Must  be approved by the Office Director or a person specifically designated as  acting on his/her behalf; and
>       Must  include:
>         (i)  specific  acts or steps the recipient will take to resolve compliance issues;
>           
>           (ii) dates for implementing each act or step; and
>           
>           (iii) dates for submission of reports and documentation verifying implementation.

Where  the agreement is memorialized through an exchange of letters, each of the above  elements must be satisfied.

While  many agreements may be fully implemented within a short period of time, some  agreements will involve more complex terms that require additional time to  complete.  The general expectation is  that resolution agreements should be implemented and monitored for not more  than two years after its issuance.

Following  are examples of circumstances that may justify extending the period of  implementation and monitoring beyond two years:

> action involving construction of, or major modification to, a  recipient’s facilities;
>   action that cannot be completed without action by a legislative body; or
>   action requiring the collection and analysis of data lasting more than  one school year.

A  copy of the agreement will be attached to the letter of 
finding(s).

(b) **Resolution Letters**

After the resolution agreement is signed, a resolution letter will be sent to the parties. The letter must include: a statement of the issues raised by the complaint;
      a  statement of OCR’s jurisdiction over the complaint; and
      clear  explanation of the pertinent legal standard and factual analysis.


The  resolution letter must state that, when fully implemented, the resolution  agreement will address all of OCR’s compliance concerns.

The  resolution letter must be approved by the Chief Attorney and the Office  Director, or their designees, and must be signed by the Office Director.

**Section 305 Letter  of Impending Enforcement Action**

(a) If,  following the expiration of the 30 calendar day period or the 10 calendar day  period referenced in Section 303(b) and the issuance of a letter of 
    finding(s),  the recipient has refused to make a commitment to voluntarily resolve the  identified areas of noncompliance, the Enforcement Office will prepare a Letter  of Impending Enforcement Action.  The  Letter of Impending Enforcement Action will be prepared in consultation with  the Chief Attorney and the Office Director.   The following information should be included, as appropriate:


A  statement of OCR’s jurisdictional authority, including recipient status and the  statutory basis for the investigation;
    A  statement of each issue and the findings of fact for each, supported by any  necessary explanation or analysis of the evidence on which the findings are  based;
    Conclusions  for each issue that reference the relevant facts, the applicable regulation,  and the appropriate legal standards;
    Notice  that the Letter of Impending Enforcement Action is not intended and should not  be construed to cover any other issue regarding the recipient’s compliance;
 Notice  of the time limit on OCR’s settlement process and the consequence of failure to  reach settlement; 
 If  a decision is made to defer final approval of any applications by the recipient  for additional federal financial assistance or, with respect to the Boy Scouts  Act, additional funds made available through the Department over what the  recipient is presently receiving, the letter also will provide notice of such  possible deferral.  A separate deferral  letter will be prepared if appropriate; and
  Title II letters will include the following language: “The complainant  may file a private suit pursuant to section 203 of the Americans with  Disabilities Act, whether or not OCR finds a violation of Title II.”


The Enforcement Office should  consult with the Enforcement Director, the Deputy Assistant Secretary for  Enforcement, and others as appropriate during the preparation of the Letter of  Enforcement Action and during any negotiations that may occur after issuance of  the letter. (b.)  The  Chief Attorney and the Office Director must approve the Letter of Impending  Enforcement Action. The Enforcement Director will obtain authorization from the  Deputy Assistant Secretary for Enforcement and the Assistant Secretary for  issuance of Letter of Impending Enforcement Action by the Enforcement Office.


**Section 306Request  for Reconsideration**

(a) OCR  is committed to a high quality resolution of every case.  OCR affords an opportunity for  reconsideration to the complainant. Notice of the reconsideration process is  provided to complainants in the information sheet that is enclosed with OCR’s letter  acknowledging receipt of the complaint.   Notice of OCR’s reconsideration process is also published on OCR’s  Internet site: http://www.ed.gov/about/offices/list/ocr/complaints-how.html.

In  addition, OCR will provide a specific notice of the reconsideration process in  letters to complainants closing allegations pursuant to Section 303(a) of the Case  Processing Manual

In  letters closing a complaint under the above-cited section of the Case  Processing Manual, the complainant will be informed that he or she may send  a request for reconsideration to the Office Director within 60 days of the date  of OCR’s closure letter.  The complainant  must explain why he or she believes the factual information was incomplete, the  analysis of the facts was incorrect, and/or the appropriate legal standard was  not applied, and how this would change OCR’s determination in the case. Failure  to do so may result in the closure of the request for reconsideration.

Although  a complainant generally is expected to submit a request for reconsideration  within 60 days of the date of the resolution letter, the Office Director may  exercise discretion in granting a waiver of the 60-day timeframe where:

the  complainant was unable to submit the request for reconsideration within the  60-day timeframe because of illness or other incapacitating circumstances and  the request was filed within 30 days after the period of illness or  incapacitation ended; or
    unique  circumstances generated by agency action have adversely affected the  complainant.


If a complainant files a request  for reconsideration with the Office Director, the Office Director will issue a  written decision in response to a request for reconsideration as promptly as  possible.

(b) The  written decision from the Office Director will include notice that if the  complainant disagrees with the decision of the Office Director, the complainant  may submit an appeal in writing to the office of the Deputy Assistant Secretary  for Enforcement within 60 days of receipt of the written decision of the Office  Director.  The complainant will be  advised to be as specific as possible, focusing on factual or legal questions  that could change the disposition of the case, and advised also that the Deputy  Assistant Secretary for Enforcement will not consider any issues or concerns  that were not raised with the Office Director.   If the complainant raises a concern that the Office Director  inappropriately declined to waive the 60-day timeframe and the Deputy Assistant  Secretary for Enforcement determines that the waiver should have been granted,  the Deputy Assistant Secretary will return the case to the appropriate  enforcement office for reconsideration.   The decision of the Deputy Assistant Secretary constitutes OCR’s final  decision.

**Section 307 Monitor  Post-Investigation Resolution Agreements**

OCR will promptly conduct its  monitoring activities consistent with the following standards and procedures

**(a) Verification of Recipient's Implementation**

OCR will  obtain sufficient information to determine whether the commitments made by the  recipient have been implemented consistent with the terms of the settlement  agreement.  In many instances  verification of remedial actions can be accomplished by careful review of  reports, documentation and other information submitted by recipients and  knowledgeable persons.  In some  instances, a site visit may be required to verify actions taken by the  recipient or may be deemed the most efficient method of verification.  Monitoring site visits will be conducted as  necessary to verify or ensure compliance with the agreement and will be  approved by the Office Director or by a person specifically designated to act  on behalf of the Director.

**(b) Responding to Monitoring Reports**

OCR  will acknowledge receipt of monitoring reports promptly.  OCR will evaluate the report, and issue a  decision as promptly as possible.   Substantive responses to interim monitoring reports (e.g. where OCR  determines actions taken are sufficient or insufficient under the agreement)  must be approved by an attorney and a manager.

**(c) Changed Circumstances Affecting Agreements**

**1. Mootness or Change in Law or Policy** OCR may agree to modify or  terminate the settlement agreement if it learns that circumstances have arisen  that fully resolve, or render moot, some or all of the compliance concerns that  were addressed by the resolution agreement (e.g., further remedial action is  not required because the student has moved out of the school district or the  programs at issue no longer exist).  OCR  will also modify the agreement in response to changes in controlling case law,  statutes, regulations, or agency policy that make some or all of the provisions  contained in the agreement no longer legally required. **2. New Compliance Issues** Compliance  issues identified for the first time during monitoring should, in consultation  with the Office Director, be addressed by providing technical assistance or  opening a new complaint, or considered for a future compliance review. **3. Implementation Problems** OCR  will promptly provide written notice to the recipient of any deficiencies with  respect to implementation of terms of the agreement, and will promptly request  appropriate action to address such deficiencies.  Where a recipient notifies OCR that it will  not carry out a provision of the agreement in the agreed-upon time or manner,  or when OCR reaches this determination, OCR will take appropriate steps to  address the problem.  OCR may seek additional  commitments where necessary to address the failure of the recipient to  implement commitments in the original agreement.  Appropriate investigative, legal and  management staff will participate in such determinations to ensure  accountability for high quality and consistency with OCR standards.  If the Enforcement Office and the recipient  are unable to resolve any deficiencies in the implementation of the agreement,  the Enforcement Office should take appropriate action.  (See Section 404.) **4. Approval of Modifications** Any  modifications to the agreement must be appended to the original agreement.  Modification of the agreement provisions, reporting provisions, or timetable  for completion or reporting will be documented in the case file.  Extensions of time of up to 30 days for each  report may be granted as authorized by the team leader or other management  representative.  Other modifications to  the agreement will be reviewed and approved by the Office Director and Chief  Attorney or persons specifically designated as acting on their behalf.  The Office Director or person specifically  designated as acting for the Director must approve any modification that would  extend the total monitoring period beyond two years from the date of the  original agreement.  The recipient and  the complainant will be notified, in writing, of significant modifications to  the agreement.


**(d) Conclusion of Monitoring**

OCR  will conclude the monitoring of a case when it determines that the recipient  has fully implemented the terms of settlement agreement, including any  subsequent modifications to the agreement.   The recipient and complainant will be promptly notified in writing of  this decision.  The letter informing the  parties that monitoring is concluded will be reviewed and approved by the  Office Director and Chief Attorney or their designees.

**Section 308 Notify the Department 
of Justice (DOJ) or EEOC When Required**

If  a Title II complaint was referred to OCR by the Department of Justice, OCR will  send a copy of the letter resolving the case to DOJ.  When a Title II/504 employment discrimination  complaint has been dual-filed with EEOC and OCR and referred to OCR, OCR will  notify the EEOC once the complaint has been resolved.  (For precision please refer to 28 C.F.R Part 37  and 29 C.F.R Part 1640.)

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**Article IV INITIATING ENFORCEMENT ACTION**

If  OCR is unable to negotiate a settlement with the recipient OCR will initiate  enforcement action.  OCR will either: (1)  initiate administrative proceedings to suspend, terminate, or refuse to grant  or continue and defer financial assistance from or, with respect to the Boy  Scouts Act, funds made available through the Department to the recipient; or  (2) refer the case to DOJ for judicial proceedings to enforce any rights of the  United States under any law of the United States.

**Section 401 Initiate Administrative Proceedings 
    Where Appropriate**

If post-Letter of Impending Enforcement Action negotiations do not result in a  resolution agreement, the Enforcement Office will so inform the Assistant  Secretary and will request that an administrative proceeding be  initiated.  OCR will establish a team to  prosecute the case.  If deferral of funds  has been imposed, the Notice of Opportunity will be issued within 30 days of  the notice of the deferral action.

**Section 402 Refer to DOJ Where 
Appropriate**

If  post-Letter of Impending Enforcement Action negotiations do not result in a  resolution agreement, the Enforcement Office will so inform the Assistant  Secretary, and that office will issue a 10-day letter informing the recipient  that the case will be referred to DOJ in 10 days of the date of the letter. OCR  will prepare a draft of the referral letter to DOJ for the General Counsel’s  signature.  The Enforcement Directors, in  conjunction with OGC, will consult with DOJ where appropriate.

**Section 403 Move to Enforcement for Denial of 
    Access**

Where  the recipient has denied access to information necessary to investigate the  case (see Section 602), a  Letter of Impending Enforcement Action is not necessary to proceed to  enforcement.  No such action can be taken  until 30 days have elapsed after notification of recipient.  As soon as the Enforcement Office concludes  that the recipient will not voluntarily provide access, it will notify the  recipient of the Enforcement Office’s determination and the Enforcement  Office’s intention to recommend enforcement.   The Enforcement Office will then prepare a draft letter, which may  include notice of OCR’s intention to impose deferral of funds.  These documents will be forwarded to the  Enforcement Director and Deputy Assistant Secretary for Enforcement.

**Section 404 Move to Enforcement 
for Failure to Comply with OCR Agreement**

Where  the recipient has failed to comply with the agreement it is necessary to  prepare a Letter of Impending Enforcement Action consistent with the procedures  outlined under Sections 306 and 307. If  a new agreement cannot be reached after issuance of the Letter of Impending  Enforcement Action, procedures set forth in  Sections 
  401 and 402 will be followed, as appropriate.

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**Article V COMPLIANCE REVIEWS**

The  investigation procedures identified in the manual for complaint resolution  should be utilized for compliance reviews, where appropriate.  The “start date” is the date the recipient is  notified of the compliance review.

**Section 501 Compliance  Concerns Unrelated to the Original Complaint**

If,  during the course of an investigation, OCR identifies compliance concerns  involving unrelated issues that were not raised in the original complaint, the  Office Director, with the approval of the Deputy Assistant Secretary for  Enforcement, may initiate a Compliance Review.

**Section 502 Treating  a Complaint as a Compliance Review**

The  Office Director, with the approval of the Deputy Assistant Secretary for Enforcement,  may treat a complaint as a Compliance Review when:




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**Article VI APPENDICES**

**Section 601 Special Intake Procedures**

**(a) Age Discrimination Complaints**

An age discrimination complaint is timely if it is filed within 
  180 days of the date the complainant first had knowledge of the alleged discrimination.

**1.Employment Complaints** OCR  does not have jurisdiction over employment complaints under the Age  Discrimination Act.  Employment  complaints filed by persons 40 and older are referred to the appropriate EEOC  office, and the OCR complaint is closed.   Employment complaints filed by persons under 40 are not within the  jurisdiction of EEOC and may be closed with notice to the complainant that  there is no jurisdiction under the Act.   If the complaint alleges age discrimination in employment that is within  EEOC’s jurisdiction and also contains allegations of discrimination in services  within the jurisdiction of OCR, the complaint is split into two separate  cases.  Each is given its own case  number, the age employment complaint is referred to EEOC with the OCR age  employment case being closed, and OCR proceeds with the age services complaint. **2. Service Complaints** All  complete and timely (see 34 C.F.R. §§ 110.31 and 110.32) complaints containing  an allegation of age discrimination in services are promptly referred to: Federal Mediation and Conciliation Service 
            2100 K Street, N.W. 
          Washington, D.C. 20427 Where OCR receives a complaint  containing both allegations of age discrimination in services and allegations  under Title VI, Title IX, Title II, Section 504, and/or the Boy Scouts Act, and  OCR determines that the non-age allegation(s) is independent and separable from  the age allegation, OCR will refer only the age portion of the complaint to  FMCS. OCR will proceed to investigate the additional allegations over which OCR  has jurisdiction. OCR will not wait for mediation of the age portion of the  complaint to conclude before beginning investigation of the non-age portion of  the complaint. Copies of the complaint and letters of  acknowledgment to the complainant and recipient and a completed FMCS “Request  for ADA Mediation Assistance” must be included. If  FMCS does not resolve the complaint within 60 days from the date of filing with  OCR, OCR will resume processing the age aspects of the complaint.****The date that the complaint, or any  portion of a complaint is sent to FMCS shall be entered in CMS; the date that  the complaint is referred back from FMCS shall also be entered in CMS.  FMCS’s processing time will, therefore, not  be included in OCR’s case processing time. The  complainant will be informed that they may file a civil action under the Age  Discrimination Act in federal court only after they have exhausted  administrative remedies.  Administrative  remedies are exhausted when either of the following has occurred: 1) 180 days  have elapsed since the filing of a complaint with OCR and OCR has made no  finding, or 2) OCR issues a finding in favor of the recipient.


**(b) Title VI ****Complaints Against Proprietary 
      Schools**

Authority  to process Title VI complaints against proprietary vocational schools  (privately owned, profit-making enterprises that teach a trade or skill leading  to immediate employment) has, with certain exceptions, been delegated to the  Department of Veterans Affairs.  Such  complaints must be forwarded to:

> Veterans Benefits Administration
>             Office  of Resolution Management 
>             U.S. Department of Veterans  Affairs 
>             810 Vermont Avenue, N.W. 
>             Washington, D.C. 20420

OCR must refer to the Department of Health and Human  Services Title VI complaints filed against a proprietary school operated by a  hospital.  The complainant must be  notified of the referral, and the complaint closed.

The following exceptions apply:

OCR  remains responsible for enforcement of Title VI where a proprietary vocational  school is operated by a college or university.   See 38 C.F.R. § 18a.1(a).
    OCR remains responsible for enforcement of Title VI where a proprietary vocational school offers non-degree courses for which credit is given and which, on transfer, would be accepted toward a baccalaureate or higher degree by a degree-granting institution.  See 38 C.F.R. § 18a.1(b).


**(c) Title VI and Title IX Employment 
  Complaints** (see 29 C.F.R. §§ 1691.1 – 1691.13 and 28 
  C.F.R. §§ 42.601 – 42.613)

Race, national origin and sex discrimination in employment 
    complaints will be processed in accordance with the government-wide regulations. 
    OCR will:

Within  ten days of receipt, notify the complainant and the recipient that OCR has  received the complaint, including the date, place and circumstances of the  alleged unlawful employment practice.
  Within thirty days of receipt:


Determine whether OCR has jurisdiction over the complaint under Title 
      VI or Title IX.
    Determine whether EEOC may have jurisdiction over the complaint.
    Transfer  to the EEOC all complaints over which OCR does not have jurisdiction but over  which EEOC may have jurisdiction.  Notify  the complainant and the recipient of the transfer, the reason for the transfer,  the location of the EEOC office to which the complaint was transferred and that  the date the agency received the complaint will be deemed the date it was  received by EEOC.
    Refer to the EEOC certain complaints over which both OCR and EEOC appear 
      to have jurisdiction (“joint complaints”), consistent with the 
      following guidance:
  
 
   
	(i) Absent special circumstances, OCR will refer a joint complaint that solely 
    alleges employment discrimination against an individual.
  (ii) Absent special circumstances, OCR will not refer a joint complaint alleging 
    a pattern or practice of employment discrimination.
  (iii) Absent  special circumstances, OCR will not refer a joint complaint that alleges  discrimination in employment and includes allegations regarding other practices  of a recipient.  If, because of special  circumstances, the employment allegations of such a complaint are referred to  EEOC, OCR will assign a new case number to the allegations that are retained.
  (iv) Notify  the complainant and recipient of the action taken on the joint complaint.  In the case of a referral to EEOC, the notice  will include the location of the EEOC office to which the complaint was  referred, the civil rights provision(s) involved, the authority of EEOC under  this regulation and that the date the agency received the complaint will be  deemed the date it was received by EEOC.
  (v) For  those joint complaints retained for OCR investigation, OCR will contact the  EEOC to ensure that, in the event EEOC has also received the complaint,  EEOC defers its investigation.


**(d) Title II****ADA  Complaints (Other than Employment)** 
(see 28 C.F.R. § 35.171(a)(2)(i))

OCR has jurisdiction to investigate Title II complaints against public elementary and secondary education systems and institutions, public institutions of higher education and vocational education (other than schools of medicine, dentistry, nursing, and other health-related schools), and public libraries.  If OCR receives an ADA-only complaint over which it does not have jurisdiction, it will be referred to the Department of Justice, then closed.  The complainant will be notified of the referral.

**(e)  Section 504 and Title II Disability 
  Employment Complaints** (for precision, please refer to 28 C.F.R Part 
  37 and 29 C.F.R. Part 1640)

**1. Referral or deferral** (i) Disability employment complaints shall be referred to the Department of Justice Civil  Rights Division if OCR has no jurisdiction under  either Title II of the ADA or Section 504  of the Rehabilitation Act of 1973, and EEOC does not have jurisdiction under  Title I (*i.e.*, recipient has fewer than 15 employees).  If EEOC has  jurisdiction under Title I (recipient has 15 or more employees) the complaint  shall be referred to them. (ii) OCR  shall defer individual complaints unless the complainant elects to have OCR  process the charge.  OCR must notify the  complainant that he or she may choose whether to have OCR or the EEOC process  the complaint and that if the complainant would like OCR to process the  complaint, OCR must receive such written request within twenty calendar days of  the date of the letter.  (28 C.F.R.§ 37.8(a)(1))  If special circumstances  make deferral inappropriate, OCR and the appropriate agency may jointly determine  to reallocate investigation responsibilities.   (28 C.F.R. § 37.8(e)) **2. Retention** (i) If  OCR has jurisdiction over a disability employment complaint under Section 504,  OCR shall retain the complaint if: The EEOC does not have jurisdiction under Title I (i.e., if fewer than 
        15 employees);
      The EEOC has jurisdiction, but the complainant elects to have OCR process 
        the complaint;
      The complaint alleges discrimination in both employment and in other 
        practices or services covered by section 504; or
      The complaint alleges a pattern or practice of employment discrimination. 
        (28 C.F.R. § 37.6(d)(1)) (ii) If  OCR has jurisdiction under Title II of the ADA but  not under Section 504 OCR shall retain jurisdiction over a complaint if  it determines that EEOC does not have jurisdiction under Title I.  (28 C.F.R. §§ 37.6(d)(2) and (3))


**Section 602 Data Collection and Information Gathering**

**(a) Generally**

Generally,  OCR requests documentary evidence from the recipient, develops interview  questions based upon those data and any other available information, and  conducts interviews with the complainant, recipient personnel, and others as  appropriate.  The exact approach taken to  data/information collection will vary from case to case depending on the issues  raised, the extent to which relevant data are in the control of the recipient  or others, and investigation strategies.   Some general principles that should guide decision-making during data  collection include:

Obtain independent written documentation to corroborate oral statements.
    Label all evidence, documents, electronic media,  and written records of contact, with information identifying the case being  investigated and the circumstances under which the evidence was obtained (e.g.,  where and when an interview was conducted, and who provided a given document).


**(b) OCR's Authority to Obtain Information**

OCR has the right of access  during a recipient’s regular business hours to recipient’s facilities and to  information maintained by the recipient that is necessary to determine  compliance status on those issues under investigation.  See 34 C.F.R. § 100.6(c) and 34 C.F.R.  § 99.31(a)(3)(iii).  Generally, this includes access to oral  information from a recipient’s employees as well as to written or non-written information,  such as electronic storage media, microfilming, retrieval systems, and  photocopies maintained by the recipient.   OCR, not the recipient, decides what information is relevant to a  determination of compliance.

OCR has no legal authority to require the complainant or any 
other non-recipients to provide information.

**(c) Requests for Records**

**1. Data Request Letters** A  data request seeks information from the recipient relevant to the  investigation.  It can be used to  initiate information collection or to request additional information after the  primary information collection activity has been completed. **2. Timeframes for Recipient's Response** The  recipient will be given 15 calendar days from the date of OCR’s request to  submit the information required. This timeframe may be modified, at OCR’s  discretion, depending on the nature and extent of data and/or other special  circumstances. **3. Data Provided by Recipient** A  recipient must submit information as necessary for OCR’s compliance activities.  However, other federal regulations and policies may restrict OCR’s information  requests: (i) For  example, unless the request is made in the context of an ongoing complaint or  compliance review investigation (see 5 C.F.R. § 1320.3), OCR may not generally  require a recipient to record information on a “form” or other standardized  data collection instrument without obtaining prior approval for its use by the  Office of Management and Budget.  OCR  may, however, suggest suitable formats to be used at the discretion of the  recipient as information collection instruments. (ii) Similarly,  OCR must consider federal policies concerning paperwork burdens when requesting  a recipient to do more than provide OCR access to normally maintained  information.  Requests that a recipient  manipulate or compile information to meet an OCR need must be reasonable and  take into consideration the burden being placed on the recipient. (iii) If a recipient invites OCR to come on-site and collect the requested information, and provides OCR with sufficient access to files, records, logs, and appropriate indexes for OCR to obtain the needed information, then the recipient has provided OCR with the requisite access. **4. Confidentiality** OCR has access to a recipient’s records, even if  those records identify individuals by name.   To protect the confidential nature of the records, OCR, for example, may  permit the recipient to replace names with a code and retain a key to the code.  However, OCR should inform the recipient that if at any time such a procedure  impedes the timely investigation of the case, OCR shall have access to the  unmodified records.  See also 20 U.S.C.  §§ 1232g(b)(1) and 1232g(b)(3) regarding the applicable provisions of the  Family Educational Rights and Privacy Act.


**(d) Interviews**

**1. Introduction** Interviews  are an integral part of most investigations.   The objective of interviews is to gain an understanding of the records  and data relevant to the issues in the case; to obtain information from and  assess the credibility of witnesses; and to evaluate recipient defenses. **2. Notice** Prior to initiating an interview, OCR should inform the 
    witness of the following: (i) The  general purpose of the interview, including OCR’s role, what law or laws may be  pertinent to the investigation, and where appropriate, a brief explanation of  what is under investigation. (ii) The  potential uses of the information to be obtained from the witness and the  Freedom of Information Act.  A witness  who wants a more thorough explanation should be given a copy of the OCR Notice  of Witness Rights (iii) The witness’s right to personal representation during the interview by  a person of  their choice. (iv) If  the witness is an employee of a recipient, his or her right to refuse to have  anyone else present during the interview and his or her right to refuse to  reveal the content of an interview. (v) The  regulatory provisions concerning prohibition of intimidating or retaliatory  acts by a recipient. (vi) In  most cases, the recipient’s counsel will be allowed to be present during upper  level management interviews. **3. Privacy** Interview  witnesses under circumstances that assure privacy.  An interpreter may be used if safeguards are  taken to ensure the competence of the interpreter and to protect the witness’s  privacy. **4. Interviews with Minors (Persons Under 
      18) or Legally Incompetent Individuals** OCR  shall obtain written consent from a parent or guardian prior to interviewing  any person under 18 years of age or otherwise adjudicated legally incompetent,  for example, mentally impaired.  Parental  or legal guardian consent may not be required for persons under 18 if they are  emancipated under state law and are therefore considered to have obtained  majority.  For persons under 18 who state  they are emancipated, OCR should obtain proof of emancipation.  Parental or legal guardian consent (or proof  of emancipation) may not be necessary when the questions asked are of a general  nature, not related to any specific events in which the minor was involved, and  there are no records kept to identify the student.  If a recipient refuses to allow minor  students to be interviewed without consent even in the above circumstance,  written consent must be obtained.  If  parents or guardians refuse to provide consent for an interview, and OCR  determines that the child’s information is critical, OCR may attempt to secure  parental or guardian consent by inviting the parent or guardian to be present  during the interview.  If consent is  denied, OCR will not interview the child. **5. Records of Interviews** A  written record of both telephone and in-person interviews must be kept.  Interviewers will notify interviewees if a  tape recording is used and tape recording will be done only with the consent of  the interviewee.  If interviewers use  tape recording, the tape becomes part of the case record along with the written  record.  Regardless of the technique used  during the interview, a written record of the interview must be created. The  record of the interview to be placed in the case file must contain the  following information: (i) case identification (name and case number); (ii) name and identification of the interviewee, interviewer, 
    and any other person present (include an explanation for the presence of any 
    other persons); (iii) date,  time, and location of interview (including whether the interview was conducted  by telephone); (iv) a record of whether the interviewee was informed of required 
    notifications; and (v) written record reflecting the questions and responses obtained during  the interview (this need not be a verbatim transcript but must accurately  reflect the responses of the witness).


**(e) Limitations on Obtaining Information**

**1. Actions Constituting Denial of Access** A recipient denies access to OCR when it: (i) refuses  to permit OCR access to written or unwritten information, such as electronic  storage media, microfilm, retrieval systems, photocopies, etc., or to  recipient’s facilities during the recipient’s normal business hours; (ii) refuses to permit OCR access to employees during recipient's 
    regular business hours; (iii) fails  to provide information by virtue of the refusal of one of its employees to do  so or to provide access to information maintained exclusively by an employee in  his/her official capacity; or (iv) refuses to complete applicable OMB-approved compliance 
    and survey forms relevant to an investigation. **2. Refusals to Provide Data or Access to 
      Witnesses** (i) If  the refusal is stated orally, either in person or over the telephone, the  investigator should attempt to ascertain the exact basis for the recipient’s  refusal, and attempt to explain OCR’s authority or provide other information to  address the recipient’s concerns. (ii) If  the investigator is unable to obtain access to the requested information, the  investigator will consult with OCR legal staff (when on-site, this should be  done over the telephone whenever possible before the investigator leaves the  recipient’s premises).  Where  appropriate, OCR legal staff should discuss the refusal to provide information  directly with the recipient’s representative. (iii) Where  attempts to persuade a recipient to provide information have failed, a letter  should be prepared setting forth OCR’s authority to obtain access to the  information and addressing any particular concerns expressed by the recipient. (iv) Whenever the office determines that compliance cannot 
    be achieved, the office shall recommend that the case be referred for enforcement. 
    (See Section III).


**Section**** 603 Freedom of Information Act and Privacy 
    Act**

The  information OCR collects is analyzed by authorized personnel within the agency  and is used only for authorized civil rights compliance and enforcement  activities.  In order to resolve a  complaint OCR may need to reveal certain information to persons outside the  agency to verify facts or gather additional information.  Such information could include the age or  physical condition of a complainant.  The  Privacy Act of 1974, 5 U.S.C. § 552a, and the Freedom of Information Act  (FOIA), 5 U.S.C. § 552, govern the use of personal information submitted to all  federal agencies and their individual components, including OCR.

The  Privacy Act of 1974, 5 U.S.C. § 552a, regulates the collection, maintenance,  use, and dissemination of certain personal information in federal agency  files.  OCR’s investigation files have  been exempted from the provisions of the Privacy Act that provide individuals  with access to records maintained on them.   The Department has published a Privacy Act system of records notice  entitled Complaint Files and Log, 18-08-01.

Third parties may not gain access  to records about individuals within a system of records without the consent of  the subject individual except as required by FOIA or pursuant to other  statutory exceptions contained in the Privacy Act.  (5 U.S.C. § 552a(b))  The Freedom of Information Act (FOIA), 5  U.S.C. § 552, gives the public a right of access to records of federal  agencies.  The FOIA is implemented by  Department regulations.  (34 C.F.R. Part  5)

Any  requests for copies of documents or other access to information contained in  OCR’s files should be referred to the Enforcement Office staff responsible for  handling FOIA and Privacy Act requests. Although each request will be reviewed  on a case-by-case basis, generally, OCR is not required to release documents  during the case resolution and investigation process or enforcement proceedings  if the release could affect OCR’s law enforcement activities.  See 5 U.S.C. §§ 552(b)(5) and (b)(7).  Also, a federal agency may refuse a request  for records if their release would result in an unwarranted invasion of privacy  of an individual.  See 5 U.S.C. §  552(b)(6).  OCR will not reveal the name  or other identifying information about an individual unless it is necessary for  completion of an investigation or for enforcement activities against an  institution that violates the laws, or unless such information is required to  be disclosed under the FOIA or the Privacy Act.

**Section 604 Recipients Operating Under Federal 
    Court Order**

Enforcement Office legal staff  will determine whether any allegations made in a complaint are covered by a  federal court order.  If allegations are  covered by such an order, normal case processing procedures will be altered as  follows:

**(a) United States a Party**

The  Office Director will consult with the Enforcement Director and forward to the  Department of Justice (DOJ) a copy of the complaint and the court order (if  readily available) asking whether DOJ is currently active in the district and  whether OCR may proceed with an investigation.   Based on DOJ’s response OCR will either:
      (i) Refer the case to DOJ; or
      (ii) Proceed with an investigation.
    Accordingly,  the Enforcement Office will then close the complaint and notify the complainant  that the case has been referred to DOJ, or accept the complaint and so notify  the complainant in the notification letter.
    If  OCR proceeds with an investigation, at the conclusion of its investigation, the  Enforcement Office will forward a report to DOJ of OCR’s findings of fact.  If DOJ offers no objection, OCR will proceed  to issue a letter of finding(s) consistent with routine case processing  standards. (See Article 
      III)


**(b) United States Not a Party**

As  part of evaluation of the complaint the Enforcement Office will consult with  parties about the current status of the court order and with the Enforcement  Director before proceeding to resolution.
    If  a Letter of Impending Enforcement Action is issued, the Letter should notify  the complainant and recipient that if settlement is not achieved, the case  would be referred to DOJ for enforcement.   If settlement is not achieved, refer Section 
      402.




1 For  simplicity this manual uses the term recipient throughout. With respect to  Title VI, Title IX, Section 504, and the Age Discrimination Act, a recipient is  an entity that receives federal financial assistance. With respect to the Boy  Scouts of America Equal Access Act, a recipient is a public elementary or  secondary school or local or State educational agency that receives funds made  available through the Department and with respect to Title II, the term is  intended to include public entities whether or not they receive federal  financial assistance. Specifically, the Department of Justice has identified  the Department of Education as the designated agency to carry out Title II  compliance activities regarding public elementary and secondary education  systems and institutions, public institutions of higher education and  vocational education (other than schools of medicine, dentistry, nursing, and  other health-related schools), and public libraries.

2  Please  note that if prior to opening a complaint for investigation, OCR determines  that any of the criteria set forth in Section 110 has been met, it will not  open the complaint for investigation, but instead will dismiss it. If OCR  dismisses a complaint for any reasons identified in this section, it will issue  a letter of dismissal to the complainant setting forth the reason for the  decision. Dismissals issued pursuant to Section 110 will be approved by the  Chief Attorney, or the Chief Attorney’s designee.

3  For the  purposes of this subsection, a child graduating, or otherwise leaving a school  or school district alone is not generally grounds to dismiss or close an  allegation based on mootness.



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