UNITED STATES DEPARTMENT OF EDUCATION
WASHINGTON, D.C. 20202
In the Matter of Docket No. 97-161-SP
MAGIC TOUCH BEAUTY INSTITUTE, Student Financial
Under 34 C.F.R. § 668.112, FPRDs are defined as written notices of a determination
issued by a department official which result from a program compliance review of an
institution's participation in any or all of the Title IV, HEA programs. The FPRDs serve several
functions: 1) to assess the liability due from the institution in regulatory violation; 2) to notify the
institution of its right to appeal; and 3) to close the review process. In this case, SFAP has
assessed the liability for funds received by Magic at $359,019. This amount includes the 1992-
1993 award year which was not included in the FPRD. SFAP explains that it mistakenly omitted
the 1992-93 award year from the FPRD. The liabilities, however, identified in the FPRD
are correct, although their award years are mislabeled. SFAP acknowledges this oversight and
alternatively assesses liability at $337,067, should this tribunal believe a prima facie case has not
been made regarding the omitted award year.See footnote 22
Previously, on February 18, 1997, SFAP initiated termination proceedings and a fine
action for Magic's failure to submit audit compliance reports for the 1992-93 and 1993-94 award
years and for failure to submit a close-out audit covering July 1, 1994, through July 17, 1997.
Audit reports generally detail the school's administration of the Title IV programs as stipulated
by 20 U.S.C. § 1094(c)(1)(A)(i) and regulated by 34 C.F.R. § 668.23(c). SFAP discontinued
pursuit of these proceedings when Magic later submitted the two compliance audits on April 24,
1997. These audit reports were incomplete, but SFAP expected that Magic would submit
revised, acceptable audits for the years in question. In view of the fact that Magic has since
closed, SFAP now seeks only a refund for the unaccounted Title IV funds, and no fine is
In accordance with 34 C.F.R. § 668.26(b)(2), an institution is required to submit a close-
out audit within 45 days after the date that the school's participation in the Title IV programs
ends. On July 30, 1997, SFAP sent Magic a letter reminding the school of its obligations to
submit a close-out audit. This letter also notified Magic that SFAP had not received audits from
Magic for the last five years. To date SFAP has not received either a close-out audit, nor an
engagement letter, as required under 34 C.F.R. § 668.26(b)(2)(ii).
According to SFAP, since unacceptable audits were submitted for both 1992-93 and
1993-94 award years, Magic cannot account for its Title IV funds for those years. SFAP argues
that Magic has the burden of proving that it complied with program requirements and made
proper Title IV expenditures under 34 C.F.R. § 668.116(d), and therefore, Magic should have
submitted a close-out audit and acceptable compliance audits for prior award years. SFAP also
alleges that Magic failed in its fiduciary duty under 34 C.F.R. § 668.82, which outlines the
required high duty of care in administering Title IV, HEA programs. SFAP believes that because
Magic agreed to abide by Title IV and the implementing regulations when it entered into a
participation agreement with the DepartmentSee footnote 33 in March 1993, the school had adequate notice of
its obligations to submit regular audits, as well as close-out audits once the school no longer
received Title IV funds. As a result, SFAP asserts that all Title IV funds received from July 1,
1992, through July 17, 1997 , should be returned to the Department because there is no accurate
way to determine how the funds were disbursed by the school.
In response to the current proceeding, Magic submitted documentation which entailed a
letter from the school's President, Mr. Ralph Antonelli, referencing his health condition and
subsequent hospitalization. Mr. Antonelli also noted that, most records are in the hands of the
state Educational Deptartment except a few that where [sic] destroyed in our robery [sic] that is
on record at the 62nd precint [sic] Brooklyn N.Y. SFAP notes that Magic did not seek additional
time to complete the necessary close-out audit, but instead seeks complete relief of its regulatory
It has been well established by this tribunal that in the absence of a close-out audit, unless
a school can otherwise account for the federal funds it received, the school is liable for all Title
IV funds received since the last audit submitted. See, e.g., In re Interamerican Business College,
Dkt. No. 96-20-SP, U.S. Dept. of Educ. (May 28, 1997); In re Belzer Yeshiva, Dkt. No. 95-55-
SP, U.S. Dept. of Educ. (June 19, 1996); In re Long Beach College of Business, Dkt. No. 94-78-
SP, U.S. Dept. of Educ. (August 30, 1995); In re Calvinade Beauty Academy, Dkt. No. 93-151-
SA, U.S. Dept. of Educ. (March 21, 1995); In re National Broadcasting School, Dkt. No. 94-98-
SP, U.S. Dept. of Educ. (Dec. 12, 1994). Magic did not submit acceptable audit reports for the
1992-93 and 1993-94 award years, nor did it submit a close-out audit covering the period since
the 1992-93 award year. As a result, Magic is responsible for all federally disbursed funds for
the time period of July 1, 1992, through July 17, 1997, when the school closed and therefore was
no longer a participant in Title IV programs.
Based on the evidence submitted, it appears as if Magic would like a complete reprieve
from the close-out audit requirements. Under 34 C.F.R. § 668.117(d) the institution's
responsibilities cannot be waived by a hearing official.See footnote 44 While the circumstances affecting Mr.
Antonelli are certainly unfortunate and make compliance with these regulations a challenge, they
do not absolve him of his responsibility to account for federal funds that were disbursed to his
school. In addition, Mr. Antonelli cites medical problems that seem to have worsened in the past
year culminating in hospitalization and surgery. This does not, however, explain the incomplete
audit reports for the 1992-93 and 1993-94 award years, indicating a history of non-compliance
that originates earlier than the cited period of illness. Further, even if relevant, there is no
verification of a robbery because the form submitted by the school concerns only lost property
and does not include an official's signature. Magic has not offered any documentation evidencing
the school's compliance with the regulations by otherwise accounting for the federal funds
received, nor evidence demonstrating an error in SFAP's computation of liability. The school
was aware of its responsibility to submit audits because this information was contained in the
Participation AgreementSee footnote 55 signed by the school. Also, a letter, dated February 18, 1997, notified
the school of SFAP's termination proceedings based on the failure to submit audit reports for the
1992-93 and 1993-94 award years. Over nine months prior to this letter, the Audit Resolution
Branch of the Institutional Monitoring Division sent Magic a warning letter, dated May 8, 1996.
This letter concerned possible administrative action if these audit reports were not submitted.
The Department records confirm that this letter was received by Magic on May 16, 1996.
Indeed, Magic had notice that the responsibility to submit these audits rested with the school.
The required audits were eventually submitted, but SFAP later notified Magic that the audits
were incomplete and therefore unacceptable. As a result, these audits cannot be used by SFAP to
account for funds disbursed during those award years.
Based on the facts presented in this case, SFAP has established a prima facie case that Magic did not adequately account for its Title IV funds, as required by 34 C.F.R. § 668.116(d). The amount of liability, as assessed by SFAP, is $359,019 and covers the 1992-93 award year through the date of the school's closing on July 17, 1997. Magic had ample notice that compliance audits were required. Multiple reminder letters included statements that appropriate administrative action involved a return of all Title IV funds disbursed. Mr. Antonelli's declining health and circumstances are unfortunate, but they do not absolve him of his burden of proving that the school made proper Title IV expenditures, which is demonstrated through the required audit submission. Audit reports enable the Department to ensure that federal financial assistance programs are properly implemented. Finally, the requirement that all funds be returned when they are not properly accounted for is well established by previous decisions of this tribunal.
Judge Richard I. Slippen
Dated: July 2, 1998
Magic Touch Beauty Institute
327 Ocean Parkway
Brooklyn, NY 11218
Denise Morelli, Esq.
Office of the General Counsel
U.S. Department of Education
600 Independence Avenue, S.W.
Washington, DC 20202-2110