|(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
(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
(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
(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.