Md. Code Regs. 13A.06.01.03

Current through Register Vol. 51, No. 10, May 17, 2024

Section 13A.06.01.03 - Program Hearing Procedures

A. Actions Subject to an Administrative Hearing Upon Request. An institution or local educational agency may request a hearing to review the following actions by the Department:

(1) For all programs:

(a) Denial of an institution's or local educational agency's application for participation in a program;

(b) Denial of an application submitted by an institution or local educational agency on behalf of a facility to participate in the program;

(c) Denial of an advance payment;

(d) Denial of all or part of a claim for reimbursement, except for late submission;

(e) Denial by the Department to forward to the U.S. Department of Agriculture, Food and Nutrition Service, an exception request by an institution or local educational agency for payment of a late claim or request for an upward adjustment to a claim;

(f) Demand for the remittance of an overpayment;

(g) Withholding payment, if applicable;

(h) Any other action of the Department affecting the participation of an institution or local educational agency in the program or the institution's claim for reimbursement under the Program; and

(i) A demand for recovery of funds determined to have been illicitly or inappropriately obtained as determined by a federal audit conducted by the USDA Office of Inspector General (OIG) or other authorized audit/oversight agency;

(2) For all programs except the Summer Food Service Program:

(a) Proposed termination of the participation of an institution, local educational agency, or facility in a program;

(b) Notice of proposed disqualification of a responsible principal or responsible individual;

(c) Suspension of an institution's or local educational agency's participation;

(d) Denial of an institution's or local educational agency's application for expansion funds or start-up payments; and

(e) Recovery of advances; and

(3) For all programs except the Child and Adult Care Food Program, program participation termination for an institution or site.

B. Actions Not Subject to an Administrative Hearing. The following actions are not subject to an administrative hearing:

(1) U.S. Department of Agriculture decision on claim deadline exceptions and requests for upward adjustments to a claim;

(2) Determination of serious deficiency;

(3) Disqualification and placement on the national disqualified list; and

(4) Termination of participation in a Program.

C. Notice of Department's Action.

(1) The institution or local educational agency shall be advised in writing of the grounds on which the Department based its action affecting the institution's participation in a program, reimbursement, or other actions noted in §A of this regulation. The notice of action shall be sent by certified mail with return receipt requested, email, and standard mail.

(2) A notice is considered received by the institution or responsible principal or responsible individual when it is delivered, sent by facsimile, or sent by email.

(3) If the notice is undeliverable, it is considered to be received by the institution, responsible principal, or responsible individual 5 days after being sent to the addressee's last known mailing address, facsimile number, or email address.

D. Appeal of Agency Action and Request for a Hearing.

(1) Except for the Summer Food Service Program, the institution or local educational agency may request an administrative hearing by filing a written request for a hearing with the Director of the Department not later than 15 calendar days after the date the notice of action is received. The request for a hearing shall clearly identify the action appealed and contain a brief statement of the reasons for requesting a hearing.

(2) The Department's action shall remain in effect during the hearing process.

(3) Participating institutions or local educational agencies may continue to operate under the Program during the hearing process of a proposed termination unless the action is based on imminent dangers to the health or welfare of participants or for submission of a false or fraudulent claim.

(4) If the institution or local educational agency has been terminated based on imminent dangers to the health or welfare of participants, the Department shall so specify in its notice of action.

(5) Institutions or local educational agencies electing to continue operating while the proposed termination is under review shall be reimbursed for valid claims submitted during the period of review in accordance with 7 CFR Parts 210 "299.

E. Acknowledgment. The Director shall mail written acknowledgment of receipt of the request for a hearing to the institution or local educational agency within 10 calendar days, and shall transmit the request to the Office of Administrative Hearings within 5 working days of receipt of the request for a hearing.

F. Delegation to the Office of Administrative Hearings.

(1) The Director shall delegate a request for a review hearing to the Office of Administrative Hearings in accordance with State Government Article, § 10-205, Annotated Code of Maryland.

(2) The review hearing shall be conducted by an administrative law judge in accordance with COMAR 28.02.01.

(3) The institution or local educational agency shall be provided with at least 10 calendar days advance written notice, sent by certified mail, return receipt requested, of the time and place of the hearing.

(4) An institution may retain counsel or may be represented by an individual designated through a properly executed power of attorney form. Individuals may represent themselves or retain counsel.

(5) Except as provided in §F(6) for the Summer Food Service Program, the administrative law judge's findings of fact, conclusions of law, and final decision affirming, reversing, or modifying the Department's action shall be based solely on the information provided by the Department, the local educational agency, the institution, and the responsible principals and responsible individuals, and based on federal and State laws, regulations, policies and procedures governing the Program and shall be submitted to the Director and to the institution or local educational agency within 60 days of the Department's receipt of the request for a hearing, unless:

(a) The parties jointly agree to a delay of the hearing;

(b) The administrative law judge, based on the request of one party and for good cause shown, grants a request for a delay of the hearing; or

(c) The administrative law judge delays the hearing for good cause.

(6) Exception - Summer Food Service Program - Appeal of Department Action.

(a) If a hearing is requested:

(i) The hearing shall be held within 14 calendar days of the Department's receipt of the request for hearing and conducted by an administrative law judge in accordance with COMAR 28.02.01;

(ii) The administrative law judge's findings of fact, conclusions of law, and final decision affirming, reversing, or modifying the Department's action shall be based solely on the information provided by the Department, the local educational agency, the institution, and the responsible principals and responsible individuals, and based on federal and State laws, regulations, policies, and procedures governing the Program and shall be submitted to the Director and to the institution or local educational agency within 5 working days of the conclusion of the hearing;

(iii) The appellant shall be allowed to refute the charges contained in the notice of action either in person or by filing a written documentation with the administrative law judge;

(iv) Written documentation shall be submitted by the appellant within 7 days of submitting the appeal, shall clearly identify the Department's action being appealed, and shall include a photocopy of the notice of action being issued by the Department;

(v) A hearing shall be held by the administrative law judge in addition to, or in lieu of, a review of written information submitted by the appellant only if the appellant so specifies in the letter appealing the action;

(vi) Failure of the appellant or appellant's representative to appear at a scheduled hearing shall constitute the appellant's waiver of the right to a personal appearance before the administrative law judge, unless the administrative law judge agrees to reschedule the hearing; and

(vii) A representative of the Department shall be allowed to attend the hearing to respond to the appellant's testimony and written information and to answer questions from the review official.

(vii) A representative of the Department shall be allowed to attend the hearing to respond to the appellant's testimony and written information and to answer questions from the administrative law judge.

(b) If the institution or local educational agency appeals the Department action but does not request a hearing, the administrative law judge shall, within 5 working days after receipt of the appeal:

(i) Make a written determination based on a review of the administrative record; and

(ii) Inform the appellant and the Department of the final decision by certified mail, return receipt requested.

(7) Exception - Child and Adult Care Food Program - Abbreviated Administrative Review. If the institution or local educational agency appeals the Department's action as described in §F(6) of this regulation and a hearing is requested, the Department shall limit the administrative hearing to a review of written submissions concerning the accuracy of the Department's determination if the application was denied or the Department proposes to terminate the institution's agreement because:

(a) The information submitted on the application was false;

(b) The institution, one of its sponsored sites, or one of the principals of the institution or its sites is on the national disqualified list;

(c) The institution, one of its sponsored sites, or one of the principals of the institution or its sites is ineligible to participate in any other publicly funded program by reason of violation of the requirements of the program; or

(d) The institution, one of its sponsored sites, or one of the principals of the institution or its sites has been convicted for any activity that indicates a lack of business integrity.

(8) Exception - National School Lunch and School Breakfast Programs - Appeal of Department Action. An institution or local education agency may refute the action specified in the notice in person and by written documentation to the administrative law judge. The action may be refuted as follows:

(a) Written documentation shall be filed with the administrative law judge not later than 30 calendar days after the appellant received the notice;

(b) An administrative hearing shall be held as described in §F(1)-(5) of this regulation by the administrative law judge in addition to, or in lieu of, a review of written information submitted by the appellant only if the appellant so specifies in the letter of request for review; and

(c) Failure of the appellant's local educational agency's representative to appear at a scheduled hearing shall constitute the appellant's local educational agency's waiver of the right to a personal appearance before the administrative law judge unless the review official agrees to reschedule the hearing.

G. Discovery. Information on which the Department's action was based shall be available to the institution or local educational agency for inspection from the date of the Department's receipt of the request for a hearing. No further discovery shall be available.

H. Burden of Proof. The institution or local educational agency has the burden of proof by a preponderance of the evidence.

I. Final Decision. The decision of the administrative law judge is the final agency determination of the State Department of Education in accordance with the federal regulations governing the program and shall be implemented promptly.

Md. Code Regs. 13A.06.01.03

Regulation .03 amended effective May 18, 1979 (6:10 Md. R. 842)
Regulations .03 repealed effective October 25, 1982 (9:21 Md. R. 2107)
Regulation .03 adopted effective January 2, 1995 (21:26 Md. R. 2191)
Regulations .03 adopted effective April 11, 2005 (32:7 Md. R. 683)
Regulation .03 amended effective July 28, 2008 (35:15 Md. R. 1350); October 3, 2011 (38:20 Md. R. 1204); amended effective 44:19 Md. R. 898, eff. 9/25/2017; amended effective 48:26 Md. R.1112, eff. 12/27/2021