Subsection 148-1-V-C - APPEALS AND HEARING1. PURPOSE: The purpose of this policy is to establish an appeal procedure to be followed by an organization contesting an adverse action taken by the State administering agency. This policy has been established in accordance with Federal Rules and Regulations published in 7 CFR Part 226 and State of Maine Administrative Procedures Act, 5 M.R.S.A. §§8001 - 9064.
1. Standards of Conduct In accordance with 7 CFR Part 226, an organization, including a sponsoring organization on behalf of a facility under its jurisdiction, may appeal the following adverse actions:
a. Denial of an organization's application for participation In the C.A.C.F.P.;b. Denial of an application submitted by a sponsoring organization on behalf of a facility;c. Termination of the participation of an organization or facility;d. Suspension of an organization's agreement;e. Denial of an organization's application for "Start-up Funds" payments;f. Denial of an organization's application for "Expansion Funds" payments;g. Denial of an advance payment;h. Denial of all or part of the claim for reimbursement (except for late submissions under Section VP Subsection A);i. State agency decision not to forward request for payment of a late claim to U.S.D.A. Regional Office;j. Demand for the remittance of an overpayment (including audit recall of funds); ork. Any other action of the Bureau affecting the participation of an organization in the C.A.C.F.P. or the organization's claim for reimbursement. 1 The Department shall not be required to provide a hearing to an organization for State action taken on the basis of a Federal audit determination. Appeals filed as a result of an adverse action in response to a Federal audit determination shall be forwarded to USDA Food and Nutrition Services for a hearing.2. Notification of An Adverse Action The Bureau of Child and Family Services or the Division of Audit of the Department of Human Services shall notify organizations of an adverse action, outlined in A through L above, in writing; such notice shall be by certified mail, return receipt requested, and shall contain a description of the organization's rights and responsibilities.
3. Manner of Filing a Request for a Fair Hearing A C.A.C.F.P. participating organization aggrieved by an adverse action of the Bureau or the findings contained in a single audit report may appeal such action by filing a timely request for a fair hearing on or before the 30th calendar day after receipt of the notice of adverse action.
a. The request for a fair hearing as a result of an adverse action initiated by the Bureau shall be mailed to or filed with the Commissioner, Department of Human Services, State House Station 11, Augusta, Maine 04333. Requests for a fair hearing as a result of adverse findings or conclusions of a single audit report or an Agency-wide audit report shall be submitted to the lead State agency.b. The request shall be in writing and must contain the name and address of the organization and the name and title of the person who signed the request. The request must be signed by an authorized representative of the organization.c. An organization that has filed an appeal and request for a fair hearing shall be afforded the opportunity to examine and copy the information in the Bureau's files upon which the adverse action was based.d. An organization may represent itself during the fair hearing process,, or be represented by legal counsel or by another person at the organization's expense. Upon acceptance, the request will be assigned to a Departmental Fair Hearing Officer. The Departmental Fair Hearing Officers are independent and impartial officials who are not accountable to the decision making authority.
4. Content of Request for Fair Hearing a. A request for a fair hearing must clearly identify the adverse action being appealed, the basis of the organization's appeal, and the relief or remedy sought. It must also cite the date of the letter or other such written communication from the Department notifying the organization of the proposed adverse action and the name and title of the official signing the letter or communication.b. An organization may submit written information in support of its .position at the time it files its appeal and request a hearing with a Fair Hearing Officer,, or the organization may state that it intends to submit additional written information to the designated Fair Hearing Officer up to 30 calendar days after receipt of the State Agency notice of adverse action.5. Procedure for Handling a Fair Hearing a. The Office of the Commissioner will receive and log each appeal and request for a fair hearing. If the appeal is timely, the appeal will be assigned to a Fair Hearing Officer.b. The Department shall acknowledge all appeals in writing within 10 calendar days of receipt. The Department shall notify an organization that is entitled to a hearing which Fair Hearing Officer has been assigned to review the appeal and where the organization may send additional information. The Department shall also notify the organization of the scheduled date, time, and place of the hearing by certified mail, return receipt requested, at least 10 calendar days in advance of the hearing. The Fair Hearing Officer may reschedule the hearing if, within 10 days, the organization presents information that the hearing officer determines to constitute good cause for failure to appear. If the organization fails to appear at the scheduled date, time and place, the Fair Hearing Officer shall proceed to render a final determination based on available written information.6. Determination of the Fair Hearing Officera. The Fair Hearing Officer shall make a written determination based upon: 1 Written information submitted by the State Agency;2 Written information submitted by the organization in support of its position;3 Such additional written information as may be obtained by the Fair Hearing Officer from any other person or persons having relevant and pertinent information, provided that the organization has the opportunity to review that information and to challenge it at a Fair Hearing;4 Information presented orally at a Fair Hearing;5 Federal laws, rules and regulations applicable to the CACFP; and6 State laws, rules and State policies applicable to the CACFP.b. The written determination shall be issued within 120 days from receipt of the appeal and request for a Fair Hearing. The determination is the Department's final administrative decision on the matter and is not subject to further review or reconsideration within the Department.c. The Fair Hearing Officer's decision shall be sent by certified mail, return receipt requested, to the organization or its representative the State Agency initiating the adverse action and the Bureau of Child and Family Services. The decision by the Fair Hearing Officer will take effect immediately upon receipt by the organization unless otherwise stipulated in the decision letter.7. Termination/Suspension of Agreement: Organizations electing to continue operating while appealing a notice of termination or suspension from the C.A.C.F.P. shall not be reimbursed for any meals served during the appeal period if the Bureau action Is upheld.
8. Judicial Review The written decision of the Fair Hearing Officer shall include notice of the organization's right to judicial review by the Superior Court under Maine Rules of Civil Procedure, Rule 80C, if the organization is dissatisfied with the fair hearing decision.
C.M.R. 10, 148, ch. 1, 148-1-V, subsec. 148-1-V-C