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RULE §1.1031Request for Appeal

(a) Actions subject to appeal. Only the following fiscal actions are subject to an appeal.

  (1) Notice of denial. Denial of all or a part of the Claim for Reimbursement, which includes the recovery of overpayment through direct assessment or offset of future claims, disallowance of overclaims as reflected in unpaid Claims for Reimbursement, submission of a revised Claim for Reimbursement, and correction of records to ensure that unfiled Claims for Reimbursement are corrected when filed; and

  (2) Withholding of payment. The withholding of payment based on the results of a comprehensive on-site evaluation or follow-up activity.

(b) Procedures for requesting an appeal. The following procedures shall apply when a school food authority requests an appeal of any action subject to appeal described in subsection (a) of this section.

  (1) Notice of denial. The school food authority shall be given notice of the action being taken or proposed, the basis for the action, and the procedures under which the school food authority may request an appeal of the action.

  (2) Request for appeal. The request for appeal shall be submitted in writing and postmarked on or before 5:00 p.m. central time not later than fifteen (15) days after the receipt, or deemed receipt, of the notice of denial. The request for appeal shall also clearly identify the action being appealed, and include a photocopy of the notice of denial. TDA shall acknowledge the receipt of the request for appeal within ten (10) days of its receipt of the request.

  (3) Representation. The school food authority may be represented by its designated official, 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 school food authority for inspection from the date of receipt of the request for an appeal.

  (5) Opposition. The school food authority may refute the findings contained in the notice of denial in person or by submitting written documentation to TDA's docket clerk. In order to be considered, written documentation shall be submitted to TDA's docket clerk not later than thirty (30) days after receipt of the notice of denial.

  (6) Hearing. A hearing shall be held by the ARO in addition to, or in lieu of, a review of written information only if the school food authority requests 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 a 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).

  (7) Basis for decision. The ARO shall make a determination based on information provided by TDA and the appellant, and on Program regulations.

  (8) Time for issuing a decision. Within sixty (60) days of TDA's receipt of the request for an appeal, the ARO shall inform TDA and the appellant of the determination of the ARO. 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.

  (9) Final decision. The determination made by the ARO is the final administrative determination to be afforded the school food authority and shall take effect upon receipt of the written notice of the final decision by the school food authority.

  (10) Record of result of appeals. TDA shall maintain searchable records of all appeals and their disposition for three (3) years from the date of the final decision.

(c) Effect of State Agency Action. TDA's action shall remain in effect during the appeal process.

(d) Computation of time. 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.

Source Note: The provisions of this §1.1031 adopted to be effective March 1, 2009, 34 TexReg 1228; amended to be effective December 5, 2013, 38 TexReg 8642

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