School Food Authority Appeal Procedures

PURPOSE: This rule establishes the appeal procedures when a school food authority requests a review of a denial of all or part of a claim for reimbursement, or for withholding payment arising from administrative review activity conducted by the Department of Elementary and Secondary Education (department) under 7 CFR section 210.18. (1) The department, through an agreement with the Food and Nutrition Service, United States Department of Agriculture, administers the School Lunch Program and the Commodity School Program. Each Local Education Agency (LEA) has a School Food Authority (SFA) that requests reimbursement from the department for expenses related to the administration of the two (2) programs mentioned above. The department makes the financial decisions regarding claims for reimbursement filed with it. If a SFA disagrees with the department’s fiscal action determination, the SFA may file an appeal with the department. (A) The SFA may file an appeal with the department because of a denial of all or part of a claim for reimbursement, reclaim, or withholding of payment resulting from an administrative review conducted by the department under 7 CFR section 210.18. (B) The department’s action shall remain in effect during the appeal process. (2) Appeal Procedure. (A) To make an appeal, the SFA must state in writing whether it is requesting a written review or a hearing. Both reviews will be fair and impartial and will be before an independent official. (B) The appeal request must identify the state action being appealed and be signed by the SFA’s authorized office school administrator. (C) All written appeal requests shall be sent to the following address: ATTN: Governmental Affairs/Food Service Authority Appeal Department of Elementary and Secondary Education PO Box 480 Jefferson City, MO 65102-0480 Or counsel@dese.mo.gov, with “Food Service Authority Appeal” in the subject line (D) All written requests for review must be postmarked by the U.S. Postal Service (or equivalent private delivery service) or delivered to the department within fifteen (15) calendar days of the SFA’s receipt of the state agency notice of the denial of all or part of the claim for reimbursement of withholding of payment. If the appeal is sent by email, the department must receive the email within fifteen (15) calendar days of the SFA’s receipt of the state agency notice of the denial of all or part of the claim for reimbursement of the withholding of payment. If the fifteenth calendar day falls on a Saturday, Sunday, or federal holiday, requests will be timely if it is postmarked or delivered the next business day that is not a Saturday, Sunday, or federal holiday. The department will not consider untimely appeals. (E) The department shall acknowledge the receipt of the request for appeal within 10 (ten) calendar days by contacting the SFA’s authorized office school administrator via email. (F) The review official shall conduct a written review or a hearing as specified in the request by the appellant SFA. Regardless of which review is conducted, the department shall provide the opportunity for the SFA to review any information obtained or created by the department upon which the notice of withholding was based. The SFA may make requests for the department’s information to the review officer. However, audit investigation notes or other material that may reveal investigation techniques, material prepared for submission to the review officer in preparation for appeal, or confidential information need not be provided. (3) Written Review of the Record. (A) If the SFA requests a written review of the record, the SFA will have the right to submit written information to the review official. (B) The department will also have the right to submit written information to the review official. (C) The commissioner of education (commissioner) will designate a review official to conduct the written review. The review official shall be an independent and impartial officer. (D) The review official shall make a recommended decision to the commissioner within sixty (60) days after the receipt of all documents from the SFA, unless good cause for delay is demonstrated. The recommended decision will be whether to uphold, reverse, or modify the department’s action based on review of the documentation and information provided by the SFA and the department, and on program regulations. (E) The commissioner will decide whether to approve or disapprove the review official’s recommended decision. The commissioner’s decision will be sent to the SFA by certified mail, return receipt requested, or equivalent service, or electronically by email, or facsimile. The decision will be sent to the department via email. (F) The commissioner shall render a decision on or before one hundred twenty (120) days from the date of request for appeal. (G) The final determination will take effect on the date of the commissioner’s decision, which is the final administrative decision for purposes of review under section 536.150, RSMo. (4) Hearings. (A) If the SFA requests a hearing, the review official shall hold a hearing within forty-five (45) days of the department’s receipt of the appeal. Upon request from either party or in the event of scheduling conflicts, the department may hold the hearing at a later date. (B) The review official shall provide the parties with at least ten (10) days advance written notice of the time, date, location, and case number of the hearing. The department will send the notice either by certified mail or its equivalent, or electronically by email, or facsimile. (C) The commissioner will designate a review official to conduct hearings. The review official shall be an independent and impartial officer. (D) Legal counsel may represent the SFA. (E) Failure of the SFA or SFA’s representative to appear at a scheduled hearing shall constitute a waiver of the right to a personal appearance before the review official. (F) A representative of the department will attend the hearing to provide testimony and written information and to answer questions from the review official. The department representative may be represented by legal counsel at the hearing. (G) The department will conduct the hearings as contested case hearing as pursuant to Chapter 536, RSMo. (H) A court reporter will transcribe the hearings and will swear in witnesses before testifying. (I) The review official shall make a recommended decision to the commissioner within sixty (60) days after receipt of the transcript of the hearing. The recommended decision will be whether to uphold, reverse, or modify the state agency’s action based on review of the documentation and testimony presented at the hearing and on program regulations. The commissioner will decide whether to approve or disapprove the review official’s recommended decision. The commissioner’s decision will be sent to the SFA by certified mail, return receipt requested, or equivalent service, or electronically by email, or facsimile. The decision will be sent to the department via email. (J) The commissioner must render a decision on or before one hundred twenty (120) days after receipt of the transcript of the hearing. (K) The final determination shall take effect on the date of the commissioner’s decision which is the final administrative decision for purposes of review under sections 536.100-536.140, RSMo. AUTHORITY: sections 161.092 and 178.430, RSMo 2016.* Original rule filed April 23, 2021, effective Dec. 30, 2021. *Original authority: 161.092, RSMo 1963, amended 1973, 2002, 2003, 2013, 2014, and 178.430, RSMo 1963.