Policy Name: 129-B “Enough is Enough”
Responsible Parties: Rector, Seminary Administration, Dean of Students
Introduction: As an Orthodox Christian institution, we do not condone any extra-marital relations whether consensual or not. That being affirmed, we are posting the following rules as required by the law of the State of New York. The legislation signed by New York State Governor Andrew Cuomo requires that all New York State schools maintain a policy in keeping with the law's requirements. As stated in the law, some specific language must be used. This language has been included. The following is Holy Trinity Orthodox Seminary's (Heretofore also referred to interchangably as Holy Trinity Seminary or HTOS) official policy which meets the requirements set forth by the law, with guidance from the Office of College and University Evaluation of the New York State Education Department.
I. Policy Statement
- In keeping with the best interest of maintaining a safe learning environment, Holy Trinity Seminary shall inform all current and incoming students of rights and regulations pertaining to sexual assault on campus. This includes a student bill of rights, a uniform definition of affirmative consent, a statewide amnesty policy, and expanded access to law enforcement.
II. Reason for Policy
- This policy is intended to enable the Seminary to comply with applicable provisions of the New York State Education Law.
III. Applicability of the Policy
- All members of the campus community should be familiar with this policy.
IV. Related Documents
- Article 129 B of the New York State Education Law (Sections-6439-6449)
|The Most Rev. Luke (Murianka), Bishop of Syracuse
|Dr. Nicolas Schidlovsky
|The Very Rev. Archimandrite Nektarios Harding
|Dean of Students
|Rev. Ephraim Willmarth
- Notification Procedures
- All incoming students will receive a copy of this policy and will receive training on applicable procedures. All current students will also receive copies of this policy. This policy will also be deemed incorporated into the bylaws of all organizations operating on the Seminary campus and each such organization will review its bylaws with its members annually.
- In the event that this policy is amended, the Rector or his designee will file the new policy with the Board of Regents and Commissioner of Education within 10 days of its adoption.
- Bystander-A person who observes a crime, impending crime, conflict, potentially violent or violent behavior, or conduct that is in violation of rules or policies of Holy Trinity Seminary.
- Confidentiality-May be offered by an individual who is not required by law to report known incidents of sexual assault or other crimes to institution officials, in a manner consistent with state and federal law, including but not limited to 20 U.S.C. 1092(f) and 20 U.S.C. 1681 (a). Licensed mental health counselors, medical providers and pastoral counselors are examples of institution employees who may offer confidentiality.
- Privacy-May be offered by an individual when such individual is unable to offer confidentiality under the law but shall still not disclose information learned from a reporting individual or bystander to a crime or incident more than necessary to comply with this and other applicable laws, including informing appropriate officials of Holy Trinity Seminary.
- Accused-A person accused of a violation who has not yet entered Holy Trinity Seminary’s conduct process.
- Respondent-A person accused of a violation who has entered Holy Trinity Seminary’s conduct process.
- Reporting individual-Any individual who brings forth a report of a violation.
- Sexual activity-This term shall have the same meaning as “sexual act” and “sexual contact” as provided in 18 U.S.C. 2246(2) and 18 U.S.C. 2246(3)
- Sexual act-HTOS abides by the definition of "Sexual act" as provided in 18 U.S.C. 2246(2). These definitions are available on request.
- Sexual contact-HTOS abides by the definition of "Sexual contact" as provided in 18 U.S.C. 2246(3). These definitions are available on request.
VIII. Affirmative Consent to Sexual Activity
- Affirmative consent is a knowing, voluntary, and mutual decision among all participants to engage in sexual activity. Consent can be given by words or actions, as long as those words or actions create clear permission regarding willingness to engage in the sexual activity. Silence or lack of resistance, in and of itself, does not demonstrate consent. The definition of consent does not vary based upon a participant’s sex, sexual orientation, gender identity, or gender expression.
- The following is meant to act as guidance for the community-
- Consent to any sexual act or prior consensual sexual activity between or with any party does not necessarily constitute consent to any other sexual act.
- Consent is required regardless of whether the person initiating the act is under the influence of drugs and/or alcohol
- Consent may be initially given but withdrawn at any time.
- Consent cannot be given when a person is incapacitated, which occurs when an individual lacks the ability to knowingly choose to participate in sexual activity. Incapacitation may be caused by the lack of consciousness or being asleep, being involuntarily restrained, or if an individual otherwise cannot consent. Depending on the degree of intoxication, someone who is under the influence of alcohol, drugs, or other intoxicants may be incapacitated and therefore unable to consent.
- Consent cannot be given when it is the result of any coercion, intimidation, force, or threat of harm.
- When consent is withdrawn or can no longer be given, sexual activity must stop.
- Minors who cannot consent under New York’s laws covering age of consent are considered incapacitated for purposes of this section.
- The following is meant to act as guidance for the community-
IX. Policy for Alcohol and/or Drug Use Amnesty
- The health and safety of every student at Holy Trinity Seminary is of utmost importance. Holy Trinity Seminary recognizes that students who may have been drinking and/or using drugs (whether such use is voluntary or involuntary) at the time that violence, including but not limited to domestic violence, dating violence, stalking, or sexual assault occurs may be hesitant to report such incidents due to fear of potential consequences for their own conduct. Holy Trinity Seminary strongly encourages students to report domestic violence, dating violence, stalking, or sexual assault to institution officials. A bystander acting in good faith or a reporting individual acting in good faith that discloses any incident of domestic violence, dating violence, stalking or sexual assault to Holy Trinity Seminary’s officials or law enforcement will not be subject to Holy Trinity Seminary’s code of conduct action for violations of alcohol and/or drug use policies occurring at or near the time of the commission of the domestic violence, dating violence, stalking or sexual assault.
- Nothing in this section shall be construed to limit Holy Trinity Seminary’s ability to provide amnesty in additional circumstances.
X. Student’s Bill of Rights
- All students have the right to:
- Make a report to local law enforcement and/or state police.
- Have disclosures of domestic violence, dating violence, stalking, and sexual assault treated seriously.
- Make a decision about whether or not to disclose a crime or violation and participate in the conduct process and/or criminal justice process free from pressure by the institution.
- Participate in a process that is fair, impartial, and provides adequate notice and a meaningful opportunity to be heard.
- Be treated with dignity and to receive from the institution courteous, fair, and respectful health care and counseling services, where available.
- Be free from any suggestion that the reporting individual is at fault when these crimes and violations are committed, or should have acted in a different manner to avoid such crimes or violations.
- Describe the incident to as few institution representatives as practicable and not be required to unnecessarily repeat a description of the incident.
- Be protected from retaliation by the institution, any student, the accused an/or the respondent and/or their friends, family and acquaintances within the jurisdiction of the institution.
- Access to at least one level of appeal of a determination.
- Be accompanied by an advisor of choice who may assist and advise a reporting individual, accused, or respondent throughout the judicial or conduct process including during all meetings and hearings related to such process.
- Exercise civil rights and practice of religion without interference by the investigative, criminal justice, or judicial or conduct process of the institution.
XI. Response to Reports
- All reporting individuals will be advised to their right to:
- Notify local and/or state police
- Students have three options consistent with provisions of the Clery Act, 20 U.S.C. 1092 (f)(8)(B)(iii)(III)(aa)-(cc)
- Notify proper law enforcement authorities, including on-campus and local police.
- Be assisted by campus authorities in notifying law enforcement authorities if the victim so chooses; and
- Decline to notify such authorities.
- Students have three options consistent with provisions of the Clery Act, 20 U.S.C. 1092 (f)(8)(B)(iii)(III)(aa)-(cc)
- Have emergency access to an appropriate official trained in interviewing victims of sexual assault who shall be available upon the first instance of disclosure by a reporting individual to provide information regarding options to proceed, and, where applicable, the importance of preserving evidence and obtaining a sexual assault forensic examination as soon as possible, and detailing that the criminal justice process utilizes different standards of proof and evidence and that any questions about whether a specific incident violated the penal law should be addressed to law enforcement or to the district attorney. Such official shall also explain whether he or she is authorized to offer the reporting individual confidentiality or privacy, and shall inform he reporting individual of other reporting options.
- Disclose confidentially the incident to Holy Trinity Seminary representatives, who may offer confidentiality pursuant to applicable laws and can assist in obtaining services for reporting individuals.
- Disclose confidentially the incident and obtain services from the state or local government.
- Disclose the incident to institution representatives who can offer privacy or confidentiality, as appropriate, and can assist in obtaining resources for reporting individuals.
- File a report of sexual assault, domestic violence, dating violence, and/or stalking and the right to consult appropriate representatives for information and assistance. Reports shall be investigated in accordance with Holy Trinity Seminary policy and a reporting individual’s identity shall remain private at all times if said reporting individual wishes to maintain privacy.
- Disclose, if the accused is an employee of the institution, the incident to the institution’s human resources authority or the right to request that confidential or private employee assist in reporting to the appropriate human resources authority.
- Receive assistance from Holy Trinity Seminary Representatives in initiating legal proceedings in family court or civil court.
- Withdraw a complaint or involvement from he institution process at any time.
- Notify local and/or state police
- At the first instance of disclosure the following information shall be presented to the reporting individual:
- You have the right to make a report to local law enforcement, and/or state police or choose not to report; to report the incident to Holy Trinity Seminary; to be protected by Holy Trinity Seminary from retaliation for reporting an incident; and to receive assistance and resources from Holy Trinity Seminary.
- Holy Trinity Seminary shall provide reporting individuals with information about resources, including intervention, mental health counseling, and medical services, which shall include information on whether such resources are available at no cost or for a fee. Holy Trinity Seminary shall also provide information on sexual transmitted infections, sexual assault forensic examinations, and other resources available through the New York state office of victim services.
- Holy Trinity Seminary shall ensure that individuals are provided the following protections and accommodations:
- When the accused or respondent is a student, Holy Trinity Seminary will issue a “no contact order” whereby continued intentional contact with the reporting individual would be a violation of Holy Trinity Seminary policy subject to additional conduct charges; if the accused or respondent and a reporting individual observe each other in a public place, it shall be the responsibility of the accused or respondent to leave the area immediately and without directly contacting the reporting individual. Both the accused or respondent and the reporting individual shall, upon request and consistent with Holy Trinity Seminary policies and procedures be afforded a prompt review, reasonable under the circumstances of the need for and terms of a no contact order, including potential modification, and shall be allowed to submit evidence in support of his or her request. Holy Trinity Seminary may establish an appropriate schedule for the accused and respondents to access applicable institution buildings and property at a time when such buildings and property are not being accessed by the reporting individual.
- To be assisted by Holy Trinity Seminary officials in obtaining an order of protection or, if outside New York state, an equivalent protective or restraining order.
- To receive a copy of the order of protection or equivalent when received by Holy Trinity Seminary and have an opportunity meet or speak with a representative of Holy Trinity Seminary or other appropriate individual, who can explain the order and answer questions about it, including information from the order about the accused’s responsibility to stay away from the protected person or persons.
- To an explanation of the consequences for violating these orders, including but not limited to arrest, additional conduct charges, and interim suspension.
- To receive assistance from Holy Trinity Seminary officials to call on and assist local law enforcement in effecting an arrest for violating such an order.
- When the accused or respondent is a student determined to present a continuing threat to the health and safety of the community, to subject the accused or respondent to interim suspension pending the outcome of a conduct process consistent with New York State Education Law and Holy Trinity Seminary ’s policies and procedures. Both the accused or respondent and the reporting individual shall, upon request and consistent with the institution’s policies and procedures, be afforded a prompt review, reasonable under the circumstances, of the need for and terms of an interim suspension, including potential modification, and shall be allowed to submit evidence in support of his or her request.
- When the accused is not a student but is a member of Holy Trinity Seminary’s community and presents a continuing threat to the health and safety of the community, to subject the accused to interim measures in accordance with applicable collective bargaining agreements, by-laws and rules and policies of the institution.
- To obtain reasonable and available interim measures and accommodations that effect a change in academic, housing, employment, transportation or other applicable arrangements in order to help ensure safety, prevent retaliation and avoid an ongoing hostile environment, consistent with Holy Trinity Seminary’s policies and procedures. Bot the accused or respondent and the reporting individual shall, upon request and consistent with Holy Trinity Seminary’s policies and procedures, be afforded a prompt review, reasonable under the circumstances, of the need for and terms of any such interim measure and accommodation that directly affects him or her, and shall be allowed to submit evidence in support of his or her request.
- Every student shall be afforded the following rights:
- The right to request that student conduct charges be filed against the accused in proceedings governed by New York State Education Law 129-B and the procedure’s established in Holy Trinity Seminary’s rules.
- The right to a process in all student conduct cases where a student is accused of sexual assault, domestic violence, dating violence, stalking, or sexual activity that may otherwise violate the institution’s code of conduct that includes, at a minimum:
- Notice to a respondent describing the date, time, location and factual allegations concerning the violation, a reference to the specific code of conduct provisions alleged to have been violated, and possible sanctions
- An opportunity to offer evidence during an investigation and to present evidence and testimony at a hearing, where appropriate, and have access to a full and fair record of any such hearing, which shall be preserved and maintained for at least five years from such a hearing and may include a transcript, recording or other appropriate record
- Access to at least one level of appeal of a determination before a panel, which may include one or more students, that is fair and impartial and does not include individuals with a conflict of interest. In order to effectuate an appeal, a respondent and reporting individual in such cases shall receive written notice of the findings of fact, the decision and the sanction, if any, as well as the rationale for the decision and sanction. Ins such cases, any rights provided to a reporting individual must be similarly provided to a respondent and any rights provided to a respondent must be similarly provided to a reporting individual.
- Throughout proceedings involving such an accusation of sexual assault, domestic violence, dating violence, stalking, or sexual activity that may otherwise violate Holy Trinity Seminary’s code of conduct, the right:
- For the respondent, accused, and reporting individual to be accompanied by an advisor of choice who may assist and advise a reporting individual, accused, or respondent throughout the judicial or conduct process including during all meetings and hearing related to such process. Rules for participation of such advisor shall be established in the code of conduct.
- To a prompt response to any complaint to have the complaint investigated and adjudicated in an impartial, timely, and thorough manner by individuals who receive annual training in conducting investigations of sexual violence, the effects of trauma, impartiality, the rights of the respondent, including the right to a presumption that the respondent is “not responsible” until finding of responsibility is made pursuant to the provisions of New York State Education Law 129-B and Holy Trinity Seminary’s policies and procedures, and other issues including but not limited to domestic violence, dating violence, stalking or sexual assault.
- To an investigation and process that is fair, impartial and provides a meaningful opportunity to be hard, and that is not conducted by individuals with a conflict of interest.
- To have Holy Trinity Seminary’s conduct process run concurrently with a criminal justice investigation and proceeding, except for temporary delays as requested by external municipal entities while law enforcement gathers evidence. Temporary delays should not last more than ten days except when law enforcement specifically requests and justifies a longer delay.
- To review and present available evidence in the case file, or otherwise in the possession or control of Holy Trinity Seminary, and relevant to the conduct case, consistent with Holy Trinity Seminary policies and procedures.
- To exclude their own prior sexual history with persons other than the other party in the judicial or conduct process or their own mental health diagnosis and/or treatment from admittance in the institution disciplinary stage that determines responsibility. Past findings of domestic violence, dating violence, stalking, or sexual assault may be admissible in the disciplinary stage that determines sanction.
- To receive written or electronic notice, provided in advance pursuant to Holy Trinity Seminary policy and reasonable under the circumstances, of any meeting they are required to or are eligible to attend, of the specific rules or laws alleged to have been violated and in what manner, and the sanction or sanctions that may be imposed on the respondent based upon the outcome of the conduct process, at which time the designated hearing or investigatory officer or panel shall provide a written statement detailing the factual findings supporting the determination and the rationale for the sanction imposed.
- To make an impact statement during the point of the proceedings where the decision maker is deliberating on appropriate sanctions.
- To simultaneous (among the parties) written or electronic notification of the outcome of a conduct process, including the sanction or sanctions.
- To be informed of the sanction or sanctions that may be imposed on the respondent based upon the outcome of the conduct process and the rationale for the actual sanction imposed.
- To choose whether to disclose or discuss the outcome of the conduct process.
- To have all information obtained during the course of the conduct process be protected from public release until the appeals panel makes a final determination unless otherwise required by law.
- For crimes of violence, including, but not limited to sexual violence, defined as crimes that meet reporting requirements pursuant to the federal Clery Act established in 20 U.S.C. 1092(f)(1)(F)(i)(I)-(VIII), Holy Trinity Seminary shall make a notation on the transcript of students found responsible after a conduct process that they were “suspended after a finding of responsibility for a code of conduct violation” or “expelled after a finding of responsibility for a code of conduct violation.” For the respondent who withdraws from the institution while such conduct charges are pending, and declines to complete the disciplinary process, Holy Trinity Seminary shall make a notation on the transcript of such students that they “withdrew with conduct charges pending.”
- Violations equivalent to crimes of violence as defined in the Clery Act (as updated by the Violence Against Women Act Final Regulations) Part I crimes, as set forth in 34 C.F.R. 668.46(c), that require a transcription notation under 6444(6) are: murder, manslaughter, rape, fondling, incest and statutory rape, robbery, aggravated assault, burglary, motor vehicle theft and arson.
XII. Campus Climate Assessments
- Holy Trinity Seminary shall conduct, no less than every other year, a campus climate assessment to ascertain general awareness and knowledge of the provisions of Article 129-B. This assessment will be anonymous and results will be published on the Seminary’s website with no identifiable information. Information discovered or produced as a result of complying with this section shall not be subject to discovery or admitted into evidence in any federal or state court proceeding or considered for other purposes in any action for damages brought by a private party against Holy Trinity Seminary, unless, in the discretion of the court, any such information is deemed to be material to the underlying claim or defense. This assessment shall include questions pertaining to:
- Campus policies and procedures addressing sexual assault
- How and where to report domestic violence, dating violence, stalking or sexual assault as a victim, survivor or witness
- The availability of resources on and off campus, such as counseling, health and academic assistance.
- The prevalence of victimization and perpetration of domestic violence, dating violence, stalking, or sexual assault on and off campus during a set time period.
- Bystander attitudes and behavior.
- Whether reporting individuals disclosed to the institution and/or law enforcement, experiences with reporting and institution processes, and reasons why they did or did not report.
- the general awareness of the difference, if any, between Holy Trinity Seminary’s policies and penal law.
- General awareness of the definition of affirmative consent.
XIII. Options for Confidential Disclosure
- Holy Trinity Seminary shall ensure that reporting individuals have the following:
- Information regarding privileged and confidential resources they may contact regarding domestic violence, dating violence, stalking or sexual assault.
- Information about counselor sand advocates they may contact regarding domestic violence dating violence, stalking, or sexual assault.
- A clear understanding of confidentiality with he following provision: Even Holy Trinity Seminary offices and employees who cannot guarantee confidentiality will maintain your privacy to the greatest extent possible. The information you provide to a non-confidential resource will be relayed only as necessary for the appropriate officials to investigate and/or seek a resolution.
- Information about how Holy Trinity Seminary shall weigh a request for confidentiality and respond to such request. Such information shall, at a minimum, include that if a reporting individual discloses an incident to an institution employee who is responsible for responding to or reporting domestic violence, dating violence, stalking, or sexual assault but wishes to maintain confidentiality or does not consent to Holy Trinity Seminary’s request to initiate an investigation, seminary officials must weigh the request against Holy Trinity Seminary’s obligation to provide a safe, non-discriminatory environment of all members of its community. Holy Trinity Seminary shall assist with academic, housing, transportation, employment, and other reasonable and available accommodations regardless of reporting choices.
- Information about public awareness and advocacy events, including guarantees that if an individual discloses information through a public awareness event such as candlelight vigils, protests, or other public event, Holy Trinity Seminary is not obligated to begin an investigation based on such information. Holy Trinity Seminary may use the information provided at such an event to inform its efforts for additional education and prevention efforts.
- Information about existing and available methods to anonymously disclose including, but not limited to information on relevant confidential hotlines provided by New York state agencies and not-for profit entities.
- Information regarding institutional crime reporting including, but not limited to: reports of certain crimes occurring in specific geographic locations that shall be included in the institution’s annual security report pursuant to the Clery Act, 20 U.S.C. 1092(f), in an anonymized manner that identifies neither the specifics of the crime nor the identity of the reporting individual; that Holy Trinity Seminary is obligated to issue timely warnings of crimes enumerated in the Clery Act occurring within relevant geography that represent a serious or continuing threat to students and employees, except in those circumstances where issuing such a warning may compromise current law enforcement efforts or when the warning itself could potentially identify the reporting individual; that a reporting individual shall not be identified in a timely warning; that the Family Educational Rights and Privacy Act, 20U.S.C. 1232(g), allows institutions to share information with parents when:
- there is a health or safety emergency or;
- when the student is a dependent on either parent’s prior year federal income tax return; and the generally, the institution shall not share information about a report of domestic violence, dating violence, stalking, or sexual assault with parents with the permission of the reporting individual.
- Holy Trinity Seminary will take proactive steps, through training and awareness efforts, to combat domestic violence, dating violence, stalking or sexual assault in a general way that does not identify those who disclose or the information disclosed.
- If it is determined that an investigation is required, Holy Trinity Seminary shall notify the reporting individuals and take immediate action as necessary to protect and assist them.
- Holy Trinity Seminary will seek consent from reporting individuals prior to conducting an investigation. Declining to consent to an investigation shall be honored unless it is determined in good faith that failure to investigate does not adequately mitigate a potential risk of harm to the reporting individual or other members of the community. Factors used to determine whether to honor such a request include, but are not limited to:
- Whether the accused has a history of violent behavior or is a repeat offender.
- Whether the incident represents escalation in unlawful conduct on behalf of the accused from previously noted behavior.
- The increased risk that the accused will commit additional acts of violence.
- Whether the accused used a weapon or force.
- Whether the reporting individual is a minor.
- Whether Holy Trinity Seminary possesses other means to obtain evidence such as security footage, and whether available information reveals a pattern of perpetration at a given location or by a particular group.
XIV. Student Onboarding and Ongoing Education
- All incoming and current students will receive ongoing education to educate members of Holy Trinity Seminary’s community about domestic violence, dating violence, stalking, and sexual assault, in compliance with applicable federal laws, including the Clery Act as amended by the Violence Against Women reauthorization of 2013, 20 U.S.C. 1092(f). Training will be expanded to include international students that are also employees, leaders and online distance education students.
- Included in this training, all new first-year and transfer students shall during the course of their orientation receive training on the following topics:
- Holy Trinity Seminary’s prohibits sexual and interpersonal violence and will offer resources to any victims and survivors of such violence while taking administrative and conduct action regarding any accused individual within the jurisdiction of the institution.
- Relevant definitions including, but not limited to, the definitions of sexual assault, domestic violence, dating violence, stalking, confidentiality, privacy, and consent.
- Policies apply equally to all students regardless of sexual orientation, gender identity, or gender expression.
- The role of the Dean , Dean of Students and Assistant Dean and other relevant offices that address domestic violence, dating violence, stalking, and sexual assault prevention and response.
- Awareness of violence, its impact on victims and survivors and their friends and family, and it’s long-term impact
- Bystander intervention and the importance of taking action to prevent violence when once can safely do so.
- Risk assessment and reduction including, but not limited to, steps that potential victims, perpetrators, and bystanders can take to lower the incidence of violations, which may contain information about the dangers of drugs and alcohol use, including underage drinking and binge drinking, involuntary consumption of incapacitating drugs and the danger of mislabeled drugs and alcohol, the importance of communication with trusted friends and family whether on campus or off campus, and the availability of institution officials who can answer general or specific questions about risk reduction.
- Consequences and sanctions for individuals who commit these crimes and code of conduct violations.
- Every leader and officer of student organizations by or registered by Holy Trinity Seminary shall complete training on dating violence, stalking, or sexual assault prevention prior to receiving recognition or registration.
- Programs will be regularly assessed to determine effectiveness and relevance for students.
XV. Reporting of Aggregate Data
- Holy Trinity Seminary shall annually report to the department the following information about reports of domestic violence, dating violence, stalking an sexual assault:
- The number of such incidents that were reported to the administration.
- Of those incidents in paragraph 1 of this subdivision, the number of reporting individuals who sought Holy Trinity Seminary’s conduct process.
- Of those reporting individuals in paragraph 2 of this subdivision, the number of cases processed through Holy Trinity Seminary’s conduct process.
- Of those cases in paragraph 3 too this subdivision, the number of respondents who were found responsible through Holy Trinity Seminary’s conduct process.
- Of those cases in paragraph 3 of this subdivision, the number of respondents who were found not responsible through the institution’s conduct process.
- A description of the final sanctions imposed by Holy Trinity Seminary for each incident for which a respondent was found responsible, as provided in paragraph 4 of this subdivision, through Holy Trinity Seminary’s conduct process.
- The number of cases in Holy Trinity Seminary’s conduct process that were closed because the complaint was withdrawn by the reporting individual prior to a final determination.