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TITLE 4AGRICULTURE
PART 1TEXAS DEPARTMENT OF AGRICULTURE
CHAPTER 1GENERAL PROCEDURES
SUBCHAPTER PAPPEAL PROCEDURES FOR THE FOOD AND NUTRITION PROGRAMS
DIVISION 1APPEAL PROCEDURES FOR THE CHILD AND ADULT CARE FOOD PROGRAM (CACFP)
RULE §1.1001Requests for Appeal Concerning Institutions, Responsible Principals and Responsible Individuals

(a) Actions subject to appeal. An appeal will be provided for adverse actions as required by 7 CFR §226.6.

(b) Actions not subject to appeal. The following actions are not subject to an appeal.

  (1) FNS decisions on claim deadline exceptions and requests for upward adjustments to a claim. A decision by FNS to deny an exception request by an institution for payment of a late claim, or for an upward adjustment to a claim.

  (2) Determination of serious deficiency. A determination that an institution is seriously deficient.

  (3) Disqualification and placement on TDA list and National Disqualified List. Disqualification of an institution or a responsible principal or responsible individual, and the subsequent placement on the TDA list and the National Disqualified List.

  (4) Termination. Termination of a participating institution's agreement, including termination of a participating institution's agreement based on the disqualification of the institution by another state agency or FNS.

(c) Appeal procedures. Except as described in §1.1002 of this title (relating to Abbreviated Appeal), which sets forth the circumstances under which an abbreviated appeal is held and §1.1003 of this title (relating to Suspension Review), which sets forth the circumstances under which a suspension review is held, the following procedures shall apply when an institution, a responsible principal or responsible individual appeals any action subject to appeal as described in subsection (a) of this section.

  (1) Notice of action. The institution's executive director and chairman of the board of directors, and the responsible principals and responsible individuals, shall be given notice of the action being taken or proposed, the basis for the action, and the procedures under which the institution and the responsible principals or responsible individuals may request an appeal of the action.

  (2) Request for appeal. The request for appeal must be received by TDA's docket clerk not later than 5:00 p.m. central time on the fifteenth (15th) day after the receipt, or deemed receipt, of the notice of action. The request for appeal shall also clearly identify the action being appealed, and include a photocopy of the notice of action. TDA shall acknowledge the receipt of the request for an appeal within ten (10) days of its receipt of the request.

  (3) Representation. The institution and the responsible principals and responsible individuals may represent themselves, retain legal counsel, or may be represented by another person.

  (4) Review of record. Any information on which TDA's action was based shall be available to the institution and the responsible principals and responsible individuals for inspection from the date of receipt of the request for an appeal.

  (5) Opposition. The institution and the responsible principals and responsible individuals may refute the findings contained in the notice of action by submitting written documentation to TDA's docket clerk. In order to be considered, written documentation must be received by TDA's docket clerk not later than 5:00 p.m. central time on the thirtieth (30th) day after receipt, or deemed receipt, of the notice of action.

  (6) TDA response. Except as may be otherwise ordered by the ARO, TDA shall file a written response no later than ten (10) days after the deadline established for filing appellant's written documentation in paragraph (5) of this subsection. TDA's response shall set forth the agency's legal and factual arguments in support of the agency's action, and, where appropriate, shall be supported by affidavit(s) and documentation.

  (7) Hearing. A hearing shall be held by the ARO in addition to, or in lieu of, a review of written information only if the institution or the responsible principals and responsible individuals request a hearing in the written request for an appeal, unless the ARO determines that the failure to make a timely request was due to circumstances beyond the control of the appellant. The rules and procedures for an administrative hearing for appeals under this subchapter are found in §§1.1050 - 1.1053 of this title (relating to Administrative Hearing Procedures for Conducting the Appeals of the Food and Nutrition Programs).

  (8) Basis for decision. The ARO shall make a determination based solely on the information provided by TDA, the institution, and the responsible principals and responsible individuals, and based on federal and state laws, regulations, policies, and procedures governing the Program.

  (9) Time for issuing a decision. Within sixty (60) days of TDA's receipt of the request for an appeal, the ARO shall issue a final order overruling or sustaining TDA's action. The ARO shall notify appellant and TDA of the final order. This timeframe is an administrative requirement for TDA and may not be used as a basis for overturning TDA's action if a decision is not made within the specified timeframe.

  (10) Final decision. The determination made by the ARO is the final administrative determination to be afforded the institution and the responsible principals and responsible individuals.

  (11) Record of result of appeals. TDA shall maintain searchable records of all appeals and their disposition for three (3) years.

  (12) In computing any period of time prescribed or allowed by this division, the day of the act, event, or default after which the designated period of time begins to run is not to be included. The last day of the period so computed is to be included, unless it is a Saturday, Sunday or legal holiday, in which event the period runs until the end of the next day which is not a Saturday, Sunday or legal holiday.

(d) Combined appeals for responsible principals and responsible individuals. The appeal of the proposed disqualification of the responsible principals and responsible individuals shall be combined with the appeal of the application denial, proposed termination, and/or proposed disqualification of the institution with which the responsible principals or responsible individuals are associated. However, at the ARO's discretion, separate appeals may be held if the institution does not request an appeal or if either the institution or the responsible principal or responsible individual demonstrates that their interests conflict.

(e) Effect of state agency action. TDA's action shall remain in effect during the appeal. The effect of this requirement on particular state agency actions is as follows.

  (1) Overpayment demand. During the period of the appeal, TDA is prohibited from taking action to collect or offset the overpayment. However, TDA shall assess interest beginning with the initial demand for remittance of the overpayment and continuing through the period of appeal unless the ARO overturns TDA's action.

  (2) Recovery of advances. During the appeal, TDA shall continue its efforts to recover advances in excess of the claim for reimbursement for the applicable period. The recovery may be through a demand for full repayment or an adjustment of subsequent payments.

  (3) Program payments. The availability of Program payments during an appeal of the denial of a new institution's application, denial of a renewing institution's application, proposed termination of a participating institution's agreement, and suspension of an institution are governed by 7 CFR §§226.6(c)(1)(iii)(D), (c)(2)(iii)(D), (c)(3)(iii)(D), (c)(5)(i)(D), and (c)(5)(ii)(E), respectively.


Source Note: The provisions of this §1.1001 adopted to be effective March 1, 2009, 34 TexReg 1227; amended to be effective December 5, 2013, 38 TexReg 8642

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