[Code of Federal Regulations]

[Title 7, Volume 4]

[Revised as of January 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 7CFR225.13]



[Page 141-142]

 

                          TITLE 7--AGRICULTURE

 

    CHAPTER II--FOOD AND NUTRITION SERVICE, DEPARTMENT OF AGRICULTURE

 

PART 225_SUMMER FOOD SERVICE PROGRAM--Table of Contents

 

                    Subpart B_State Agency Provisions

 

Sec. 225.13  Appeal procedures.



    (a) Each State agency shall establish a procedure to be followed by 

an applicant appealing: A denial of an application for participation; a 

denial of a sponsor's request for an advance payment; a denial of a 

sponsor's claim for reimbursement (except for late submission under 

Sec. 225.9(d)(5)); a State agency's refusal to forward to FNS an 

exception request by the sponsor for payment of a late claim or a 

request for an upward adjustment to a claim; a claim against a sponsor 

for remittance of a payment; the termination of the sponsor or a site; a 

denial of a sponsor's application for a site; a denial of a food service 

management company's application for registration, if applicable; or the 

revocation of a food service management company's registration, if 

applicable. Appeals shall not be allowed on decisions made by FNS with 

respect to late claims or upward adjustments under Sec. 225.9(d)(5).

    (b) At a minimum, appeal procedures shall provide that:

    (1) The sponsor or food service management company be advised in 

writing of the grounds upon which the State agency based the action. The 

notice of action, which shall be sent by certified mail, return receipt 

requested, shall also state that the sponsor or food service management 

company has the right to appeal the State's action;

    (2) The sponsor or food service management company be advised in 

writing that the appeal must be made within a specified time and must 

meet the requirements of paragraph (b)(4) of this section. The State 

agency shall establish this period of time at not less than one week nor 

more than two weeks from the date on which the notice of action is 

received;

    (3) The appellant be allowed the opportunity to review any 

information upon which the action was based;

    (4) The appellant be allowed to refute the charges contained in the 

notice of action either in person or by filing written documentation 

with the review official. To be considered, written documentation must 

be submitted by the



[[Page 142]]



appellant within seven days of submitting the appeal, must clearly 

identify the State agency action being appealed, and must include a 

photocopy of the notice of action issued by the State agency;

    (5) A hearing be held by the review official in addition to, or in 

lieu of, a review of written information submitted by the appellant only 

if the appellant so specifies in the letter appealing the action. The 

appellant may retain legal counsel or may be represented by another 

person. Failure of the appellant's representative to appear at a 

scheduled hearing shall constitute the appellant's waiver of the right 

to a personal appearance before the review official, unless the review 

official agrees to reschedule the hearing. A representative of the State 

agency shall be allowed to attend the hearing to respond to the 

appellant's testimony and written information and to answer questions 

from the review official;

    (6) If the appellant has requested a hearing, the appellant and the 

State agency shall be provided with at least 5 days advance written 

notice, sent by certified mail, return receipt requested, of the time 

and place of the hearing;

    (7) The hearing be held within 14 days of the date of the receipt of 

the request for review, but, where applicable, not before the 

appellant's written documentation is received in accordance with 

paragraphs (b) (4) and (5) of this section;

    (8) The review official be independent of the original decision-

making process;

    (9) The review official make a determination based on information 

provided by the State agency and the appellant, and on Program 

regulations;

    (10) Within 5 working days after the appellant's hearing, or within 

5 working days after receipt of written documentation if no hearing is 

held, the reviewing official make a determination based on a full review 

of the administrative record and inform the appellant of the 

determination of the review by certified mail, return receipt requested;

    (11) The State agency's action remain in effect during the appeal 

process. However, participating sponsors and sites may continue to 

operate the Program during an appeal of termination, and if the appeal 

results in overturning the State agency's decision, reimbursement shall 

be paid for meals served during the appeal process. However, such 

continued Program operation shall not be allowed if the State agency's 

action is based on imminent dangers to the health or welfare of 

children. If the sponsor or site has been terminated for this reason, 

the State agency shall so specify in its notice of action; and

    (12) The determination by the State review official is the final 

administrative determination to be afforded to the appellant.

    (c) The State agency shall send written notification of the complete 

appeal procedures and of the actions which are appealable, as specified 

in paragraph (a) of this section, to each potential sponsor applying to 

participate and to each food service management company applying to 

register in accordance with Sec. 225.6(g).

    (d) A record regarding each review shall be kept by the State 

agency, as required under Sec. 225.8(a). The record shall document the 

State agency's compliance with these regulations and shall include the 

basis for its decision.



[54 FR 18208, Apr. 27, 1989, as amended at 64 FR 72486, Dec. 28, 1999]