Overview
An agency operating one or more Child Nutrition Programs (CNP) that is administered by the California Department of Education (CDE), may appeal certain actions taken by the CDE against the agency. Regulations for each CNP identify certain actions that agencies have the right to appeal. When the CDE is taking action against an agency, the CDE will provide the agency with a written notice of action that explains the agency's right to appeal and refers the agency to the procedures outlined below. This web page outlines the procedure for agencies of the Summer Food Service Program (SFSP) that wish to appeal actions taken by the CDE. Title 7,Code of Federal Regulations (7CFR), Section 225.13, defines the SFSP appeal process.
If your agency has received a written notice of action from the CDE that states that your agency may appeal the action(s) being taken and your agency wants to appeal the action, review the following procedures to request the appeal.
Actions SFSP Operators Can Appeal
Agency’s Written Request for an Appeal
Submission of Written Documentation
Notice of Hearing Date
Notification of Office of Administrative Hearing (OAH) Determination
Contacts
Actions SFSP Operators Can Appeal
Application Denial
An agency may appeal the CDE's denial, in accordance with the regulation listed below, of a new or renewing institution's application to participate in the SFSP. Reasons for the denial may include, but is not limited to: the agency is not financially viable or the agency or responsible principal are currently seriously deficient in the CNPs.
7CFR, Section 225.6(b)(3): "Within 30 days of receiving a complete and correct application, the State agency shall notify the applicant of its approval or disapproval. If an incomplete application is received, the State agency shall so notify the applicant within 15 days and shall provide technical assistance for the purpose of completing the application. Any disapproved applicant shall be notified of its right to appeal under §225.13."
Application Denial of a Sponsored Site
An agency may appeal the CDE's denial, in accordance with the regulation listed below, of an application submitted by a sponsoring organization on behalf of a facility. Reasons for the denial may include, but are not limited to: the agency is not financially viable, the sponsor is seriously deficient, or the site is not eligible using site eligibility criteria.
7CFR, Section 225.11(c): "... the State agency shall not enter into an agreement with any applicant sponsor identifiable through its corporate organization, officers, employees, or otherwise, as an institution which participated in any Federal child nutrition program and was seriously deficient in its operation of any such program…"
Termination of a Sponsor or Site
An agency may appeal the CDE's denial, in accordance with the regulations listed below, to terminate an institution's SFSP agreement or site approval. Reasons for the termination may include, but are not limited to: the agency has been declared seriously deficient, corrective action has not been completed, or the presence of serious health and safety violations.
7CFR, Section 225.11(c): "... the State agency shall terminate the Program agreement with any sponsor which it determines to be seriously deficient. However, the State agency shall afford a sponsor reasonable opportunity to correct problems before terminating the sponsor for being seriously deficient…""
7CFR, Section 225.11(f):
(2) “The State agency shall terminate the participation of a sponsor's site if the sponsor fails to take action to correct the Program violations noted in a State agency review report within the timeframes established by the corrective action plan.
(3) The State agency shall immediately terminate the participation of a sponsor's site if during a review it determines that the health or safety of the participating children is imminently threatened.”
7CFR,Section 225.18(b)(2): "A State agency shall terminate a sponsor's participation in the Program by written notice whenever it is determined by the State agency that the sponsor has failed to comply with the conditions of the Program."
Claim Denial
An agency may appeal the CDE's denial, in accordance with the regulation listed below, of all or part of an institution's claim for reimbursement (not on the basis of late claim submission). Reasons for the denial may include, but are not limited to: the site is not approved, the site was erroneously approved and should not be allowed to claim, or claims are not supported by required records.
7CFR, Section 225.12(a): "The State agency shall disallow any portion of a claim for reimbursement and recover any payment to a sponsor not properly payable under this part, except as provided for in §225.10(c). State agencies may consider claims for reimbursement not properly payable if a sponsor's records do not justify all costs and meals claimed."
Claim Deadline Exceptions and Requests for Upward Claim Adjustments
An agency may appeal the CDE's decision, in accordance with the regulation listed below, not to forward an institution's exception request to the U.S. Department of Agriculture Food and Nutrition Service (FNS) for payment of a late claim or a request for an upward adjustment of a claim. Reasons for the denial may include operating issues that are deemed preventable and within the agency’s control.
7CFR, Section 225.9(d)(6): "A final Claim for Reimbursement shall be postmarked or submitted to the State agency not later than 60 days after the last day of the month covered by the claim...Claims not filed within the 60 day deadline shall not be paid with Program funds unless FNS [Food and Nutrition Service] determines that an exception should be granted..."
Denial of Advance Payment Request
An agency may appeal the CDE’s denial, in accordance with the regulation listed below, of an advance payment request. Reasons for the denial may include, but are not limited to: the agency has been declared seriously deficient, corrective action has not been completed, or that the agency is on a payment hold.
7CFR, Section 225.9(c)(5): "If the State agency has reason to believe that a sponsor will not be able to submit a valid claim for reimbursement covering the month for which advance payments have already been made, the subsequent month's advance payment shall be withheld until a valid claim is received."
Agency’s Written Request for an Appeal
If appealing AR findings, the agency may appeal the accuracy of the findings that generate the fiscal action but cannot appeal the dollar amount contained in the notice of action for reasons of hardship to the agency.
Timeline
The SFSP agency's written request for an appeal must be emailed to CNPappeals@cde.ca.gov no later than 10 calendar days after receipt of the notice of action. The CDE will acknowledge receipt of the appeal request within five (5) calendar days. The appeal may specify the type of hearing preferred. Mailed or faxed submissions are not accepted.
Types of Hearings
There are three types of hearings: written review, written review with oral argument, and oral hearing. An agency may select one of the three types. If the agency does not select a hearing type, a written review will be provided. The three types of hearings are described as follows:
- Written Review: If the agency requests a written review, the hearing officer will analyze the written documentation provided by the agency and by the CDE to render a decision.
- Written Review with Oral Argument: If an agency requests a written review with oral argument, the hearing officer will analyze and render a decision based upon the written statements and documentation provided by the agency and the CDE. The agency is permitted to appear in person before the hearing officer in Sacramento to explain its case. During the oral argument portion of the proceeding, the agency and the CDE clarify relevant issues presented in their written statements and documents. Because of the informality of this process, the oral arguments are not considered testimony. The arguments are recorded, and the hearing officer may ask questions of either party.
- Oral Hearing: If an agency requests an oral hearing, the hearing officer will render a decision based upon documentation submitted into evidence and witness testimony. When this option is specified on the appeal request, the OAH will schedule a hearing. The agency will be formally notified by the OAH of the oral hearings date, time, and location at least 10 calendar days prior to the scheduled appointment. All oral hearings are held in Sacramento.
Submitting Written Documentation
Written documentation for all types of hearings must be electronically submitted to both the OAH and the NSD within 7 calendar days from the date the agency submitted the appeal. Mailed or faxed submissions are not accepted.
- Office of Administrative Hearings: The OAH requires all documents to be submitted electronically using their Secure e-File system: OAHSecureEFile@dgs.ca.gov
- Nutrition Services Division: Send documents by email to CNPappeals@cde.ca.gov
Notice of Hearing Date
If a hearing has been requested, the OAH electronically provides the agency and the CDE with advance written notice of the time, date, and location of the hearing (either virtual or in Sacramento) via electronic mail. The OAH provides the agency and the CDE at least five (5) calendar days advance written notice.
General Information: Hearings
The hearing officer is an independent and impartial officer, other than and not accountable to, any person authorized to make decisions that are subject to appeal under the provisions of the applicable CNPs. Additionally, the hearing officer has the authority to select another hearing type if they determine the issues cannot be fully discussed or clarified under the hearing type originally selected.
The agency may retain legal counsel or may be represented by another person. Failure of the agency’s representative to appear at a scheduled hearing shall constitute the agency’s waiver of the right to a personal appearance before the OAH, unless the OAH agrees to reschedule the hearing or issue a continuance.
The information that forms the basis of the CDE’s proposed action is available to the agency for inspection from the date of receipt of the appeal request.
If a written review with oral argument or an oral hearing is chosen, a representative of the CDE is allowed to attend the hearing to respond to the agency's testimony and to answer questions posed by the OAH.
Notification of OAH Determination
The OAH will make a determination based on information provided by the CDE, the agency, and program regulations. The determination by the OAH is the final administrative determination available to the agency and therefore no additional appeals can be submitted.
- The agency will be notified of the determination within five (5) business days from the date of the hearing.
- The CDE's action remains in effect during the appeal process.
For more information regarding the hearing process, please contact the OAH by phone at 916-263-0550 or by email at DGSOAHFeedback@dgs.ca.gov.
Contacts
For questions regarding the formal appeal process, to confirm receipt of your formal appeal, and for general appeal questions, contact the Program Accountability team at CNPappeals@cde.ca.gov.
For more information regarding the hearing process, contact the OAH by phone at 916-263-0550 or by email at DGSOAHFeedback@dgs.ca.gov.