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If you have questions contact Nicole Proesch, legal counsel for the Department and the State Board,
at 515-281-8661 or nicole.proesch@iowa.gov.
BOOK: 27 
DECISION: 703 
MONTH-YEAR: January - 2016
IN RE: Termination from CACFP
APPELLANT: Traceys Tots Daycare & Preschool, Tracey Wilson and Cori Jewett
APPELLEE: Iowa Department of Education Bureau of Nutrition and Health Services
KEYWORDS: CACFP regulations; health and safety of children
FULL TEXT: https://www.educateiowa.gov/documents/appeal-decisions/2016/02/book-27-decision-703  
DETAILS: CACFP provides reimbursement for meals and snacks served to children in daycare homes and centers.  To participate in CACFP, a center must possess a certification of registration from the Iowa Department of Human Services, and must sign an agreement that provides for the terms and conditions of program participation.     

CACFP is a program created by the Agricultural Risk Protection Act, 42 U.S.C. § 1766.  The regulations are located at 7 CFR Part 226.  The regulations at 7 CFR § 226.6 enumerate reasons why a center may be terminated from CACFP.  Being cited as ''seriously deficient'' and not correcting the deficiency is one cause for termination. 
  The only standard of proof enunciated in the regulations is that a suspension review decision requires the State agency to show by a preponderance of the evidence that its action was appropriate.  This action was not a suspension review decision. However, in the absence of the articulation of any other standard of proof, it is assumed that the Bureau must show by a preponderance of the evidence that its Proposed Termination and Disqualification are correct.
  The undersigned could find no caselaw to illuminate when a State Agency may use the procedure under 7 CFR § 226.6(c)(6)(ii)(d) that permits the Bureau to temporarily defer a determination of serious deficiency and later move immediately to terminate and disqualify a center without further opportunity to implement corrective action.    However, basic tenants of due process dictate that this procedure must be limited to circumstances where a center was given clear notice of what serious deficiencies occurred originally, clear notice of how to correct the deficiencies, and clear notice of what deficiencies have been determined by the State Agency to not have been fully and permanently corrected after all.
  The review of the actions taken by the Bureau was greatly hampered by the fact that the Bureau made little discernable attempt in its Termination letter of November 24, 2015 to relate the repeated serious deficiencies cited with the earlier corrective action that the Bureau claims was not fully and permanently corrected.  At hearing, the Bureau relied on the broad categories of insufficient recordkeeping and - even broader - ''other financial and administrative responsibilities required.''  The ''kitchen sink'' approach taken by the Bureau in its Termination letter of November 24, 2015 also hurt the credibility of the Bureaus argument in this appeal. 
  An immediate termination is a drastic action.  It calls for the State Agency to use care in making the connection between the previous serious deficiencies and the allegation that one or more of the previously accepted corrective actions have been deemed not to be full or permanent because of one or more repeated serious deficiencies.  The repeated serious deficiency must truly reflect a systemic issue.

When a corrective action plan is limited to remediation and does not include any requirement to demonstrate going forward how a center will ensure that the issue does not recur, it cannot form the basis for a finding that the serious deficiency has not been permanently and fully corrected. 
OUTCOMES: The proposed termination of Traceys Tots Day Care from the Child and Adult Care Food Program is hereby reversed.  The proposed disqualifications of  Traceys Tots Day Care, Tracey Wilson and Cori Jewett from the Child and Adult Care Food Program are also hereby reversed.