[Code of Federal Regulations]
[Title 7, Volume 4]
[Revised as of January 1, 2007]
From the U.S. Government Printing Office via GPO Access
[CITE: 7CFR247.33]

[Page 425-427]
 
                          TITLE 7--AGRICULTURE
 
    CHAPTER II--FOOD AND NUTRITION SERVICE, DEPARTMENT OF AGRICULTURE
 
PART 247_COMMODITY SUPPLEMENTAL FOOD PROGRAM--Table of Contents
 
Sec.  247.33  Fair hearings.

    (a) What is a fair hearing? A fair hearing is a process that allows 
a CSFP applicant or participant to appeal an adverse action, which may 
include the denial or discontinuance of program benefits, 
disqualification from the program, or a claim to repay the value of 
commodities received as a result of fraud. State and local agencies must 
ensure that CSFP applicants and participants understand their right to 
appeal an adverse action through the fair hearing process, which 
includes providing written notification of the individual's right to a 
fair hearing along with notification of the adverse action. Such 
notification is not required at the expiration of a certification 
period.
    (b) What are the basic requirements the State agency must follow in 
establishing procedures to be used in fair hearings? The State agency 
must establish simple, clear, uniform rules of procedure to be used in 
fair hearings, including, at a minimum, the procedures outlined in this 
section. The State agency may use alternate procedures if approved by 
FNS. The rules of procedure must be

[[Page 426]]

available for public inspection and copying.
    (c) How may an individual request a fair hearing? An individual, or 
an individual's parent or caretaker, may request a fair hearing by 
making a clear expression, verbal or written, to a State or local agency 
official, that an appeal of the adverse action is desired.
    (d) How much time does an individual have to request a fair hearing? 
The State or local agency must allow an individual at least 60 days from 
the date the agency mails or gives the individual the notification of 
adverse action to request a fair hearing.
    (e) When may a State or local agency deny a request for a fair 
hearing? The State or local agency may deny a request for a fair hearing 
when:
    (1) The request is not received within the time limit established in 
paragraph (d) of this section;
    (2) The request is withdrawn in writing by the individual requesting 
the hearing or by an authorized representative of the individual; or
    (3) The individual fails to appear, without good cause, for the 
scheduled hearing.
    (f) Does the request for a fair hearing have any effect on the 
receipt of CSFP benefits? Participants who appeal the discontinuance of 
program benefits within the 15-day advance notification period required 
under Sec. Sec.  247.17 and 247.20 must be permitted to continue to 
receive benefits until a decision on the appeal is made by the hearing 
official, or until the end of the participant's certification period, 
whichever occurs first. However, if the hearing decision finds that a 
participant received program benefits fraudulently, the local agency 
must include the value of benefits received during the time that the 
hearing was pending, as well as for any previous period, in its 
initiation and pursuit of a claim against the participant.
    (g) What notification must the State or local agency provide an 
individual in scheduling the hearing? The State or local agency must 
provide an individual with at least 10 days' advance written notice of 
the time and place of the hearing, and must include the rules of 
procedure for the hearing.
    (h) What are the individual's rights in the actual conduct of the 
hearing? The individual must have the opportunity to:
    (1) Examine documents supporting the State or local agency's 
decision before and during the hearing;
    (2) Be assisted or represented by an attorney or other persons;
    (3) Bring witnesses;
    (4) Present arguments;
    (5) Question or refute testimony or evidence, including an 
opportunity to confront and cross-examine others at the hearing; and,
    (6) Submit evidence to help establish facts and circumstances.
    (i) Who is responsible for conducting the fair hearing, and what are 
the specific responsibilities of that person? The fair hearing must be 
conducted by an impartial official who does not have any personal stake 
or involvement in the decision and who was not directly involved in the 
initial adverse action that resulted in the hearing. The hearing 
official is responsible for:
    (1) Administering oaths or affirmations, as required by the State;
    (2) Ensuring that all relevant issues are considered;
    (3) Ensuring that all evidence necessary for a decision to be made 
is presented at the hearing, and included in the record of the hearing;
    (4) Ensuring that the hearing is conducted in an orderly manner, in 
accordance with due process; and
    (5) Making a hearing decision.
    (j) How is a hearing decision made? The hearing official must make a 
decision that complies with Federal laws and regulations, and is based 
on the facts in the hearing record. In making the decision, the hearing 
official must summarize the facts of the case, specify the reasons for 
the decision, and identify the evidence supporting the decision and the 
laws or regulations that the decision upholds. The decision made by the 
hearing official is binding on the State or local agency.
    (k) What is the time limit for making a hearing decision and 
notifying the individual of the decision? A hearing decision must be 
made, and the individual notified of the decision, in writing, within 45 
days of the request for the

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hearing. The notification must include the reasons for the decision.
    (l) How does the hearing decision affect the individual's receipt of 
CSFP benefits? If a hearing decision is in favor of an applicant who was 
denied CSFP benefits, the receipt of benefits must begin within 45 days 
from the date that the hearing was requested, if the applicant is still 
eligible for the program. If the hearing decision is against a 
participant, the State or local agency must discontinue benefits as soon 
as possible, or at a date determined by the hearing official.
    (m) What must be included in the hearing record? In addition to the 
hearing decision, the hearing record must include a transcript or 
recording of testimony, or an official report of all that transpired at 
the hearing, along with all exhibits, papers, and requests made. The 
record must be maintained in accordance with Sec.  247.29(a). The record 
of the hearing must be available for public inspection and copying, in 
accordance with the confidentiality requirements under Sec.  247.36(b).
    (n) What further steps may an individual take if a hearing decision 
is not in his or her favor? If a hearing decision upholds the State or 
local agency's action, and a State-level review or rehearing process is 
available, the State or local agency must describe to the individual any 
State-level review or rehearing process. The State or local agency must 
also inform the individual of the right of the individual to pursue 
judicial review of the decision.