Appeal Process for School Nutrition Programs

Overview

An agency operating one or more Child Nutrition Program (CNP) 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 School Nutrition Program (SNP) agencies to take when appealing actions taken by the CDE. Title 7, Code of Federal Regulations (7 CFR), Section 210.18(p), defines the SNP appeal process. Types of appeals include denial of all or a part of the claim for meal reimbursement, withholding payment arising from administrative or follow-up review activity, and fines.

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 decides to appeal the action, review the following procedures to request the appeal:

Actions SNP 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 SNP Operators Can Appeal

Denial of All or Part of a Claim for Reimbursement Arising from Administrative Review/Audit or Withholding Payment by the State Agency

Reasons for the denial may include, but are not limited to, claims are not supported by required documentation, meals served do not meet meal pattern requirements for the SNP, and required corrective action is not submitted.

Only actions issued by the CDE as a result of the following regulations may be appealed by SNP operators:

• 7 CFR, Section 210.18(p): "School food authority appeal of State agency findings. Except for Food and Nutrition Service (FNS) conducted reviews authorized under §210.29(d)(2), each State agency must establish an appeal procedure to be followed by a school food authority requesting a review of a denial of all or a part of the Claim for Reimbursement, withholding payment arising from administrative or follow-up review activity conducted by the State agency under this §210.18…"

• 7 CFR, Section 210.18(k): “Withholding payment. At a minimum, the State agency must withhold all program payments to a school food authority as follows:
  
  
1. Cause for withholding. (i) The State agency must withhold all Program payments to a school food authority if documented corrective action for critical area violations is not provided with the deadlines specified in paragraph (j)(2) of this section. (ii) The State agency must withhold all Program payments to a school food authority if the State agency finds that corrective action for critical area violation was not completed; (iii) The State agency may withhold Program payments to a school food authority at its discretion, if the State agency found a critical area violation on a previous review and the school food authority continues to have the same error for the same cause; and (iv) For general area violations, the State agency may withhold Program payments to a school food authority at its discretion, if the State agency finds that documented corrective action is not provided within the deadlines specified in paragraph (j)(2) of this section, corrective action is not complete, or corrective action was not taken as specified in the documented corrective action
   
   
2. Duration of withholding. In all cases, Program payments must be withheld until such time as corrective action is completed, documented corrective action is received and deemed acceptable by the State agency, or the State agency completes a follow-up review and confirms that the problem has been corrected. Subsequent to the State agency's acceptance of the corrective actions, payments will be released for all meals served in accordance with the provisions of this part during the period the payments were withheld. In very serious cases, the State agency will evaluate whether the degree of non-compliance warrants termination in accordance with§210.25.”

• 7 CFR, Section 210.18(l): "Fiscal action.The State agency must take fiscal action for all Performance Standard 1 violations and specific Performance Standard 2 violations identified during an administrative review, including targeted follow-up review or other reviews, as specified in this section. Fiscal action must be taken in accordance with the principles in§210.19(c) and the procedures established in the FNS Administrative Review (AR) Manual. The State agency must follow the fiscal action formula prescribed by FNS to calculate the correct entitlement for a school food authority or a school. While there is no fiscal action required for general area violations, the State agency has the ability to withhold funds for repeat or egregious violations occurring in the majority of the general areas as described in paragraph (k)(1)(iv) of this section."

If appealing AR findings, the agency may appeal the accuracy of the findings that generate a fiscal action but cannot appeal the dollar amount contained in the notice of action for reasons of hardship to the agency.

Agency’s Written Request for an Appeal

Timeline

The agency's written request for an appeal must be emailed to CNPappeals@cde.ca.gov no later than 15 calendar days after receipt of the notice of action, per 7 CFR Section 210.18(p)(1). The CDE will acknowledge the receipt of the appeal request within 10 calendar days. 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 of hearings. 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 in the appeal request, the Office of Administrative Hearings (OAH) will schedule a hearing. The agency will be formally notified by the OAH of the oral hearing 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 CDE’s NSD within 30 calendar days from the date the agency received the notice of action. 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 toCNPappeals@cde.ca.gov

Notice of Hearing Date

If a hearing has been requested, the OAH 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 10 calendar days advance written notice of the hearing date.

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 60 calendar days from the date the CDE received the request for a hearing.
  
  
• The CDE's action remains in effect during the appeal process.
  

For more information regarding the hearing process, 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.