[29 Pa.B. 3841]
[Continued from previous Web Page] Chapter 1107. Sanctions.
Section 1107.1 (relating to sanctions) establishes the types of sanction, duration of sanctions and the standards the Department will use in imposing a sanction against a WIC authorized store.
Federal regulations mandate that the Department establish policies and procedures which determine the type and level of sanctions to be applied against food vendors, based upon the nature and severity of the WIC Program violations observed, and other factors such as the Department determines are appropriate. See 7 CFR 246.12(k)(1). The regulations mandate that the period of disqualification from the WIC Program be reasonable and not exceed 3 years. The maximum period of disqualification shall only be imposed for the most serious of offenses. See 7 CFR 246.12(k)(1)(ii).
There are three categories of sanctions. Conduct warranting each type of sanction have been grouped together based upon the nature and severity of the violation. Subsection (h)(1), pertaining to Class A abuses, identifies the type of conduct that carries the sanction of 1 year disqualification from the program. The prohibited conduct generally relates to violations in the provision of food benefits to WIC participants.
Subsection (h)(2), pertaining to Class B abuses, provides for the disqualification for the store from participation in the WIC Program for 2 years. The WIC Program violations specified in this paragraph generally relate to abuse of program funds by authorized stores.
Subsection (h)(3), pertaining to Class C abuses, provides for the imposition of a 3-year disqualification upon stores for the most egregious program violations. These are WIC Program violations committed with the intent to defraud the WIC Program. These violations are considered the most severe, and therefore carry the stiffest penalty permitted by the Federal regulations.
For any program violations not specifically in subsections (h)(1)--(3), the regulations provide that the Department will determine the sanction based upon the nature and severity of the violation.
This regulation presents five minor differences from how the WIC Program is currently administered. The five changes are reflected in the length of sanctions imposed upon a store for violations of statutes and regulations governing the store's participation in the WIC Program. The majority of the changes have decreased the time for the specific violations.
Previously, if an authorized store had the participant sign the check before completing the ''Pay Exactly'' box on the check, the Department imposed a 2-year sanction. The regulation changes the sanction to 1 year. Previously, if an authorized store overcharged the WIC Program by charging Sales Tax or providing more food than the quantity specified on the check, the Department imposed a 2-year sanction. The regulation changes the sanction to 1 year. Previously, if an authorized store provided rainchecks to a participant because WIC authorized food was unavailable, the Department imposed a 2-year disqualification. The regulation now provides that the Department shall determine the length of the sanction. Previously, if an authorized store demanded that a participant pay for authorized foods with the participant's own money or with another WIC check, the Department imposed a 3-year sanction. The regulation changes the sanction to 1 year.
Section 1107.2 (relating to civil money penalties) establishes when the Department will offer a store the option of paying a civil money penalty in lieu of denial of recertification or in lieu of disqualification. This option is only available when the Department finds that disqualification or the denial of recertification for the store would cause hardship, as defined in § 1103.7 (relating to participant hardship), for the WIC participants currently making their WIC purchases at the store.
The calculation of the civil money penalty is based upon the formula in subsection (b). This formula is similar to that used by the Food Stamp Program for calculation of civil money penalties with one exception: the Department multiplies 5% of the average monthly total value of WIC checks the store negotiated by the number of months the store would have been disqualified, while the Food Stamp Program multiplies 10% of the average monthly sales by the number of months the store would have been disqualified. Current Federal regulations do not have a provision for offering civil money penalties in lieu of disqualification, but new Federal regulations are anticipated to require that this option be available under limited circumstances. Those circumstances are similar to those in this regulation.
Chapter 1109. Administrative Appeals.
Section 1109.1 (relating to applicability of general rules) establishes that 1 Pa. Code Part II is applies to proceedings conducted under the WIC regulations except as otherwise provided in these regulations.
Section 1109.2 (relating to scope and purpose) clarifies that Chapters 1111 and 1113 prescribe the administrative procedures to be followed for hearings relating to the WIC Program and required by the Federal statute and regulations in 7 CFR 246.9 and 246.18 (relating to fair hearing procedures for participants; and administrative appeal of state agency decisions). Because certain procedures are required by Federal law, this section further indicates that specific procedures contained in Chapters 1111 and 1113 supplement or supersede the general rules.
Section 1109.3 (relating to time limits for action) relates that time limits for issuance of decisions by the hearing examiner under § 1111.10(d) (relating to hearing examiner decisions) for applicant and participants appeals, and adjudication and orders issued by hearing examiners § 1113.3(b) (relating to adjudication and order) for local agency and store appeals, are directory. The Department may provide time frames for the issuance of the decision, but has no ability to ensure that the hearing examiner's decision will be issued within the time frames provided for by these regulations. Furthermore, other factors may impact upon the timely issuance of a hearing decision, such as whether the matter was continued and whether posthearing briefs were requested by the hearing examiner or the parties.
Chapter 1111. Applicant and Participant Appeals.
This chapter establishes procedures for applicants and participants of the WIC Program to appeal certain decisions which adversely impact upon their participation in the WIC Program. The Federal regulations regarding the appeals may be found in 7 CFR Part 246. The purpose for establishing special procedures for participants and applicants is to encourage participants and applicants to appeal decisions with which they do not agree. The regulations achieve this by presenting them with a forum to pursue appeals which is not unduly complex or legalistic.
Section 1111.1 (relating to applicant and participant appeal rights) provides that the scope of this chapter is to address appeal rights of applicants and participants. Federal regulations have established hearing procedures which are intended to provide an opportunity for applicants and participants to challenge certain WIC Program decisions which may adversely impact upon the person. See 7 CFR 246.9(a).
Section 1111.2 (relating to notification of appeal rights) sets forth the WIC Program decisions which may be appealed. It further provides for the provision of notice to applicants and participants of their right to appeal decisions covered under the scope of this chapter.
Subsection (a) requires that the local agency advise an adult applicant or the parent or guardian of an infant applicant of the right to appeal decisions which deny benefits. This subsection further requires the local agency to provide notice to an adult participant or the parent or guardian of an infant participant, of the right to appeal a decision which results in a claim against the individual for improperly issued benefits or that person's disqualification from the WIC Program. This section explicitly provides that the expiration of benefits is not appealable. This subsection complies with the requirements in 7 CFR 246.9(c).
Subsection (b) requires the local agency to provide the notice required under subsection (a) in writing, on forms provided by the Department. The purpose of this requirement is to ensure that the WIC Program has documentation that it has complied with the notice requirements in subsection (a) and to ensure that the participant understands that the participant has the right to appeal the decisions. The Department has developed standard forms, readable at an eighth grade level, to ensure that the adult applicants and participants, or the parent or guardian of infant applicants or participants, understand their rights.
Section 1111.3 (relating to appeal of a local agency decision) defines how an adult applicant or participant, or the parent or guardian of an infant applicant or participant, may appeal a local agency decision.
Subsection (a) defines an appeal as a clear expression that the person wishes to present the case to a higher authority. The appeal need not be in writing. This is consistent with the Federal requirements in 7 CFR 246.9(d). If the clear expression of the desire to appeal has not been put in writing by the participant, this subsection places the burden upon the Department or local agency to reduce the appeal to writing. This is required to document that the appeal was made and the date on which the appeal was made.
Subsection (b) establishes the standard for determining a docketing date for an oral appeal. The appeal shall be docketed as being filed when the local agency receives the communication. This date is important to ensure that the appeal was made within the required time for appeal in § 1111.4 (relating to time for appeal of a local agency decision).
Section 1111.4 requires the applicant, participant or authorized representative of the applicant or participant to appeal a WIC Program decision within 90 days after the date the local agency mails or delivers the decision. This standard is more liberal than the minimum standard in 7 CFR 246.9(e). Federal regulations require that the individual be provided a reasonable period of time to request a hearing to appeal the adverse decision, if the time limit is at least 60 days.
Section 1111.5 (relating to scheduling the hearing) requires that the local agency appoint as a hearing examiner an individual who has not participated in the decision being appealed and who does not have a personal stake or involvement in the decision. This requirement ensures that the hearings are conducted by a fair and impartial hearing examiner, as mandated by 7 CFR 246.9(i).
Subsection (b) provides that the local agency advise the hearing examiner of the date on which the appeal is docketed. This is to ensure that the hearing examiner has the information available to the examiner to comply with the requirements for scheduling the hearing in subsection (c).
Subsection (c) sets forth the time frame for scheduling the hearing. In compliance with 7 CFR 246.9(j), the hearing shall be held within 3 weeks of the docketed date of the appeal. Further, the hearing examiner is required to provide the applicant or participant or authorized representative of the applicant or participant a minimum of 10 days advance written notice of the time and place for the hearing. The purpose of these requirements is to ensure that hearings are held promptly. If the decision of the local agency is overturned, an applicant may receive, as soon as possible, supplemental nutrition benefits that have been denied. If the decision of the local agency is overturned, the participant may resume receiving benefits from the WIC Program as soon as possible. The 10-day advance notice is sufficient to allow the applicant or participant or authorized representative to arrange that person's schedule to ensure attendance at the hearing requested.
Subsection (d) establishes standards for scheduling hearings in compliance with the mandate of 7 CFR 246.9(h) for the development of uniform rules of procedure. These standards require:
(1) That the forum for the hearing be convenient for the applicant or participant.
(2) Provide the method for requesting continuances.
(3) set forth the circumstances under which an appeal may be withdrawn.
(4) Provide the circumstances under which an appeal shall be discontinued.
Subsection (e) provides the hearing examiner, under 7 CFR 246.9(i)(5), the authority to order, when relevant and necessary, an independent medical assessment. When a medical condition is contested, this subsection provides the means for an impartial opinion.
Section 1111.6 (relating to denial or dismissal of appeal) prescribes the three instances when the hearing examiner may deny or dismiss the appeal of an applicant, participant or authorized representative of an applicant or participant. The appeal may be denied or dismissed when it is not timely received, when the appeal has been withdrawn or when the person's authorized representative fails without good cause to attend. These standards provide administrative management for the resolution of appeals.
Section 1111.7 (relating to continuation of benefits) provides for a continuation of benefits if the participant timely files an appeal of a local agency decision that renders the participant ineligible to continue receiving benefits. This complies with 7 CFR 246.9(g). The purpose of this section is to ensure that an individual receiving benefits who timely appeals the local agency decision continues to receive the WIC Program foods until the local agency decision to terminate benefits is addressed by the hearing examiner. The costs of WIC Program benefits in the interim between the appeal and the decision is minimal when weighed against the possible loss of nutritional benefits to the participant if the local agency decision to terminate benefits is found to have been inappropriate.
Section 1111.8 (relating to rights of the appellant) prescribes the rights of the appellant during the appeals process. The rights in this section are under the Federal regulatory mandate that the State establish rules of procedure. These rules of procedure include the rules of conduct at the hearing and the rights of the appellant during the appeals process. See 7 CFR 246.9(h). In particular, subsection (b) sets forth 12 rights of the appellant. Three of the rights supplement or supersede sections of 1 Pa. Code Part II. The appellant has the right to appear in person at the hearing. This provision supplements 1 Pa. Code § 31.21 (relating to appearance in person). The appellant has the right to be represented by an authorized representative at the hearing who need not necessarily be an attorney. This provision supersedes 1 Pa. Code §§ 31.22 and 31.23 (relating to appearance by attorney; and other representation prohibited at hearings). This right complies with 7 CFR 246.9(j)(2), which provides that the appellant be permitted to be assisted or represented by an attorney or other person at the hearing. The purpose of this subsection is to ensure that procedures are not unduly legalistic or complex. The intent is to encourage applicants and participants to appeal a decision, if they believe the decision was inappropriate, without requiring them to engage the service of an attorney. The applicant, participant or authorized representative may request from the hearing examiner a subpoena for the production of evidence. This provision supplements 1 Pa. Code § 35.142 (relating to subpoenas) by providing authority to the hearing examiner to issue a subpoena upon request.
Section 1111.9(a) (relating to hearing record) prescribes the contents of the hearing record. Subsection (b) requires that hearing records be retained for 3 years. This is required under the Federal record retention requirements in 7 CFR 246.25(a)(1)--(2) (relating to records and repeats).
Subsection (c) provides that hearing records shall be available for public inspection and copying provided that names and addresses are kept confidential.
Section 1111.10 (relating to hearing examiner decisions) prescribes the standards for the hearing examiner to follow in issuing a decision.
Section 1111.11 (relating appeal to the Secretary) establishes procedures for appeals of hearing examiner decisions to the Secretary and prescribes the form of the appeal.
Section 1111.12 (relating to adjudication and order procedures) prescribes how the Secretary may reach a decision on an appeal from the local agency decision. The Secretary may reconsider the decision on the basis of the evidence in the record, admit additional evidence or order a new hearing. Subsection (b) further provides that, upon the filing of an appeal to the Secretary, there is no automatic stay of the enforcement of the local agency decision to terminate benefits which was upheld by the hearing examiner.
Section 1111.13 (relating to judicial review) provides that the applicant or participant has the right to appeal the Secretary's adjudication and order to the Commonwealth Court if the adjudication and order is adverse to the interest of the applicant or participant. This section further provides that the appeal be filed within 30 days after the mailing date of the adjudication and order.
Chapter 1113. Local Agency and Store Appeals.
This chapter establishes procedures for a store or local agency to appeal decisions which adversely impact upon their participation in the WIC Program. The Federal regulations regarding the appeals may be found in 7 CFR 246.18 (relating to administrative appeals of State agency decisions). There is no requirement for local agency and store appeals, as there is for participant and applicant appeals, that the procedures the Department established not be unduly complex or legalistic. The Department has chosen to continue with that practice, to encourage local agencies and stores to participate in the appeals process if they believe that the decisions are incorrect.
Section 1113.1 (relating to right to appeal) establishes which decisions may be appealed by a store or local agency. Not all decisions are appealable. For example, the expiration of a WIC authorization is not subject to appeal, but the denial of a new authorization is appealable.
Section 1113.2 (relating to appeal procedures) establishes standards for notification by the Division of WIC of its adverse action against a store or local agency, provides for the form of the appeal and provides that any appeal made under this chapter shall be filed with the Director of the Division of WIC within 30 days after any final decision by the Division of WIC. This section further provides for scheduling the hearing and the appointment of the hearing examiner by the Secretary. Subsection (f) sets forth the standards for conducting a hearing.
Section 1113.3 (relating to adjudication and order) establishes the contents of the adjudication and order, the time frames (which are directory) for issuing the order, and the contents of the record the hearing examiner is required to maintain.
Section 1113.4 (relating to continuing responsibilities) mandates that a store or local agency continue to comply with any written agreement between the Department and the store or local agency during an appeal.
Section 1113.5 (relating to judicial review) provides that the store or local agency has the right to appeal the Secretary's adjudication and order to the Commonwealth Court if the adjudication and order is adverse to the interest of the store or local agency. This section further provides that the appeal shall be filed within 30 days after the mailing date of the adjudication and order.
C. Fiscal Impact
The WIC Program is 100% funded by the Federal government. No State dollars are involved in the operation of the WIC Program, including compensation of State employes. There will be no fiscal impact on the State government or other political subdivision as a result of these regulations.
With few minor exceptions, as noted in the Section B ''Summary,'' the provisions of these regulations set forth, in a regulatory format, how the Department has administered the WIC Program since approximately 1986. Therefore, these regulations will have no significant fiscal impact on the general public or on the stores that voluntarily choose to participate in the WIC Program.
D. Paperwork Requirements
The only change relating to paperwork these regulations will require is the maintenance by authorized stores of price and inventory records for 6 months. See § 1105.3(a)(21).
Although there was not previously a regulatory requirement that WIC authorized stores maintain price and inventory records for a stated period of time, authorized stores have been required to provide the Department with the highest prices of authorized foods on a quarterly basis since the calendar quarter ending December 1991. Therefore, authorized stores have had to maintain price and inventory records for at least a 3-month period to comply with this obligation. The new regulation, requiring authorized stores to maintain the price and inventory records for 6 months, will not represent a significant impact on authorized stores. New Federal regulations governing the food delivery systems of state agencies are anticipated in the near future. The new Federal regulations are expected to mandate that states require authorized stores to maintain price and inventory records for the same period of time as the businesses are required to maintain the records for Federal tax purposes. The Commonwealth's requirement is significantly less burdensome.
E. Effective Date
The regulations are effective upon publication in the Pennsylvania Bulletin. These regulations will be monitored continually and will be updated as required by changes in Federal statute or Federal regulations governing the WIC Program.
F. Statutory Authority
The WIC Program is a Federal program authorized by an amendment to the Federal Act (42 U.S.C.A. § 1786). Congress has authorized the USDA- FNS to contract with state agencies for the establishment of the WIC Program. The act and regulations governing the WIC Program require that the state agency responsible for the administration of the WIC Program submit on an annual basis a state agency plan of operations (42 U.S.C.A. § 1786(f)(1)(A); 7 CFR 246.4). The Federal statute and regulations require that the state agency establish a procedure under which members of the general public are provided an opportunity to comment on the development of the State agency plan, which the Department does by annually publishing notices in the Pennsylvania Bulletin and newspapers of general circulation, as well as sending notices to interested parties. All state agency plans of operations, as well as any changes thereto, must be approved by the Secretary of the USDA. The state agency may not deviate from the plan without USDA approval. There is, however, no Federal requirement for the establishment of state regulations.
G. Regulatory Review
These regulations are being promulgated under the decision of the Commonwealth Court in Giant Food Stores, Inc. v. Commonwealth of Pennsylvania, Department of Health, 713 A.2d 177 (Pa. Cmwlth. 1998), wherein the Court found the criteria that the Department used to authorize grocery stores to participate in the food delivery system of the WIC Program were invalid because they were not promulgated as a regulation. The court did not address the propriety of the criteria; it found only that the criteria needed to be published as a regulation under sections 1102--1602 of the CDL (45 P. S. §§ 1102--1602), and submitted to the Office of Attorney General under the Commonwealth Attorneys Act (71 P. S. §§ 732-101--732-506). The Court further found the Regulatory Review Act (71 P. S. §§ 745.1--745.17) was inapplicable to the criteria the Department uses to authorize grocery stores, because the criteria were developed by the Department as a result of a delegation of authority based solely upon Federal statute and regulation, and thus, are outside the scope of the Regulatory Review Act.
The Department, nevertheless, has elected to submit these regulations to the Independent Regulatory Review Commission (IRRC) and the standing committees of the Pennsylvania House and Senate for review and to follow the Regulatory Review Act procedures for service upon and cooperation with IRRC and the standing committees.
Because the regulations relate to the administration of the WIC Program by the Department, the Department was required to submit them to the USDA-FNS for approval as part of the state agency annual plan of operations. Following revisions required by the USDA-FNS, by letter dated April 12, 1999, the regulations were approved. These regulations may not be changed without the review and approval of the USDA-FNS.
H. Regulatory Review
Consistent with section 5.1(a) of the Regulatory Department Review Act (71 P. S. § 745.5a(a)), on April 24, 1999, the Department submitted a copy of the final-form regulations with proposed rulemaking omitted to IRRC and the Chairpersons of the House Health and Human Services Committee and the Senate Public Health and Welfare Committee. On the same date, the final-form regulations were submitted to the Office of Attorney General for review and approval under the Commonwealth Attorneys Act. In addition to submitting the final-form regulations, the Department has provided IRRC and the Committees with a detailed Regulatory Analysis Form prepared by the Department in Compliance with Executive Order 1996-1, ''Regulatory Review and Promulgation.'' A copy of this material is available to the public upon request.
In accordance with section 5.1(d) of the Regulatory Review Act, the final-form regulations were deemed approved by the House Health and Human Services Committee on May 19, 1999, and deemed approved by the Senate Public Health and Welfare Committee on May 19, 1999. IRRC met on May 20, 1999, and approved the final-form regulations. The Office of Attorney General approved the final-form regulations for form and legality on July 14, 1999.
I. Contact Person
Persons with questions regarding the final-form regulations may contact Greg Landis, Chief of the Grants and Retail Store Section, Division of WIC, Department of Health, P. O. Box 90, Room 604, Health and Welfare Building, Harrisburg, PA 17108, (717) 783-1289. Persons with a disability, who have questions regarding the final-form regulations may also be submitted to Mr. Landis in alternative formats, such as by audio tape, braille or by using V/TT 783-6514 for speech or hearing impaired persons or the Pennsylvania AT&T Relay services at (800) 654-5984 [TT]. Persons with a disability who require an alternative format of this document (such as, large print, audio tape, braille) please contact Mr. Landis so that he may make the necessary arrangements.
J. Findings
The Department for good cause finds that:
(1) The promulgation of these final-form regulations is necessary under the Commonwealth Court decision in Giant Food Stores, Inc. v. Commonwealth of Pennsylvania, Department of Health, 713 A.2d 177 (Pa. Cmwlth. 1998).
(2) The WIC Program must carry out the purposes of the Federal act for which Federal funds have been provided to the Department.
(3) To carry out the purposes of the Federal act, the Department must authorize and review stores to participate in the WIC Program as part of the delivery of supplemental food benefits to WIC participants through the retail system which the Department has elected to use.
(4) The Department will comply with the requirements of the Federal regulations governing the WIC Program found in 7 CFR 246, and particularly with respect to these regulations, the Federal regulations governing the food delivery system of the WIC Program, 7 CFR 246.12(g), which requires that the Department conduct reviews of stores at least once every 2 years.
(5) Reviews of at least 1,400 retail grocery stores and numerous other stores seeking authorization must be completed by September 30, 1999, to stay compliant with the Federal regulations governing the WIC Program. See 7 CFR 246.12(g).
(6) Failure to have State regulations promulgated in the most expeditious manner possible will render the Department unable to conduct the reviews of the 1,400 retail grocery stores, and will place the Department out of compliance with Federal regulations.
(7) If the Department is not compliant with Federal regulations, the Commonwealth will face audit exceptions and a loss of Federal funding to operate the WIC Program.
(8) Because the WIC Program is 100% Federally funded, loss of $170 million in Federal funding would place a difficult, if not impossible, burden upon the Commonwealth to provide funds to continue to operate the WIC Program, which provides benefits to approximately 243,000 women, infants and children.
(9) The regulations contained in Annex A set forth in a regulatory format standards for the administration of the WIC Program, as they relate to design and operational requirements of the food delivery system which have been in effect since 1986.
(10) Dispensing with proposed rulemaking is necessary to meet Federal regulatory requirements and the procedures specified in 45 P. S. §§ 1201 and 1202 are in the circumstances impracticable to comply with if the Department is to comply with Federal regulations.
(11) Dispensing with proposed rulemaking advances the public interest by ensuring that provision of supplemental food benefits to the participants of the WIC Program.
(12) Dispensing with proposed rulemaking advances the public interest in protecting Commonwealth funds by ensuring that there will be no loss of Federal funding which would require that the Commonwealth provide state funding to operate the WIC Program in the absence of Federal funding.
K. Order
The Department, acting under the authorizing statute, orders that:
(a) The regulations of the Department, 28 Pa. Code §§ 8.41--8.43, 8.51--8.62 and 8.71--8.74 are hereby deleted.
(b) The regulations of the Department are hereby amended by adding Chapters 1101, 1103, 1105, 1107, 1109, 1111 and 1113: by adding §§ 1101.1--1101.3, 1103.1--1103.7, 1105.1--1105.6, 1107.1, 1107.2, 1109.1--1109.3, 1111.1--1111.13 and 1113.1--1113.5,to read as set forth in Annex A.
(c) The Secretary of the Health shall submit this order and Annex A to the Office of General Counsel and the Office of the Attorney General for approval as to form and legality as required by law.
(d) The Secretary of the Health shall certify this order and Annex A and deposit them with the Legislative Reference Bureau as required by law.
(5) The regulations shall take effect upon publication in the Pennsylvania Bulletin.
ROBERT S. ZIMMERMAN, Jr.,
Secretary(Editor's Note: For the text of a notice relating to this final rulemaking, see 29 Pa.B. 3964 (July 24, 1999). For the text of the Independent Regulatory Review Commission relating to this document, see 29 Pa.B. 2933 (June 5, 1999).)
Fiscal Note: 10-158. No fiscal impact; (8) recommends adoption.
Annex A
TITLE 28. HEALTH AND SAFETY
PART I. GENERAL HEALTH
CHAPTER 8. PRACTICE AND PROCEDURE §§ 8.41--8.43. (Reserved).
§§ 8.51--8.62. (Reserved).
§§ 8.71--8.74. (Reserved).
PART VIII. SUPPLEMENTAL NUTRITION PROGRAM FOR WOMEN, INFANTS AND CHILDREN (WIC PROGRAM)
CHAPTER 1101. GENERAL PROVISIONS Sec.
1101.1. Background and scope. 1101.2. Definitions. 1101.3. Administration. § 1101.1. Background and scope.
(a) Background. Through an amendment to the Child Nutrition Act of 1966 (42 U.S.C.A. § 1786), Congress has authorized the USDA-FNS to contract with state agencies for the establishment of the WIC Program. The USDA-FNS contracts with and makes funds available to the Department to administer the WIC Program in this Commonwealth.
(1) The purpose of the WIC Program is to provide allowable foods to income eligible pregnant, breast-feeding or postpartum women, infants, and children up to 5 years of age, who are at nutritional risk because of medical problems or poor diets. The WIC Program provides these individuals with nutritious foods to supplement their diets during critical stages of growth and development. These foods are chosen to correct, prevent or minimize health and nutritional problems. The foods are not intended to be a complete diet, but, rather, to supplement other foods available to the participants.
(2) In addition to providing supplemental foods, the WIC Program refers applicants and participants to health services and offers nutrition education so that the food will be properly used and will improve the dietary and health habits of the entire family. The Department uses a retail purchase system to provide the majority of food benefits to participants.
(b) Scope. This part establishes design and operational requirements for the food delivery system for the WIC Program, and prescribes procedures to be used by applicants, participants, local agencies and stores to appeal actions of the Department and local agencies that may adversely impact upon them.
§ 1101.2. Definitions.
The following words and terms, when used in this part, have the following meanings, unless the context clearly indicates otherwise:
Allowable foods--Foods and infant formula on the WIC food list. These products meet nutritional standards established by the USDA-FNS and are authorized by the Department for purchase with WIC checks.
Applicant--An individual applying to become a participant.
Authorized representative--For an applicant or participant, an adult applicant or participant, a parent or guardian of an applicant or participant who is an infant or child or an individual designated by that person to represent the applicant or participant in administrative proceedings involving the WIC Program. For a local agency or store, an individual designated by the local agency or store to represent it in administrative proceedings involving the WIC Program.
Breast-feeding woman--A woman, during 1 year postpartum, who is breast-feeding her infant.
Certification--For purposes of Chapters 1101--1109 and 1113, the term means the Department's acceptance of a store, not currently authorized to participate in the WIC Program, as a WIC authorized store. For purposes of Chapter 1111 (relating to applicant and participant appeal), the term means the Department's acceptance of an applicant to participate in the WIC Program as a participant.
Child--A person 1 year of age or older but under 5 years of age.
Clinic--A facility where applicants apply for and participants receive WIC Program services other than food benefits.
Compliance buy--A covert purchase at a WIC authorized store, with a WIC check, conducted to enable the Department to evaluate adherence by a WIC authorized store with this part governing the store's participation in the WIC Program.
Compliance investigation--A series of at least two compliance buys conducted at the same WIC authorized store.
Competent professional authority--An individual on the staff of the local agency authorized to determine nutritional risk and prescribe supplemental foods. The following persons are the only persons the Department will authorize to serve as a competent professional authority: physicians, nutritionists (Bachelor's or Master's Degree in Nutritional Sciences, Community Nutrition, Clinical Nutrition, Dietetics, Public Health Nutrition or Home Economics with emphasis on nutrition), dieticians, registered nurses, physician's assistants (certified by the National Committee on Certification of Physician's Assistants or certified by the State medical certifying authority), or State or local medically trained health officials. The term also applies to an individual who is not on staff at the local agency but who is qualified to provide data upon which nutritional risk determinations are made by a competent professional authority on staff of the local agency.
Department--The Department of Health of the Commonwealth.
Disqualification--For the purposes of Chapters 1101--1109 and 1113 of this part, the term means the action by the Department to end participation of a WIC authorized store in the WIC Program for reasons of fraud, abuse or other violations of this part governing the store's participation in the WIC Program. For purposes of Chapter 1111 (relating to applicant and participant appeals), the term means action by the Department or local agency to end participation of a participant who no longer meets the qualifications necessary to participate in the WIC Program or for reasons of fraud, abuse or violation of standards governing the participant's enrollment in the WIC Program.
Division of WIC--Division of WIC in the Department.
Endorser--The parent or guardian of an infant or child participant who is authorized to use and sign the WIC checks of the infant or child for purchase of allowable foods.
Filing date--The date on which the local agency or the Department receives an appeal.
Food prescription--A designation by a competent professional authority of allowable foods in specified quantities to meet a participant's nutritional needs based upon a determination of nutritional risk.
Health services--Routine pediatric and obstetric care (such as infant and child care and prenatal and postpartum examinations) or referral for treatment.
High risk store--A store identified as a possible perpetrator of fraud or abuse through analysis of redemption patterns of WIC checks or WIC sales, through compliance violations, or by complaints of participants or WIC Program staff.
Infant--A person under 1 year of age.
Inventory audits--A comparison of a WIC authorized store's inventory levels and purchases of a particular WIC product over a specific period of time, to actual WIC purchases of the same product during the same period of time, to determine if the store had adequate product quantities available to satisfy claims made for WIC reimbursement of the product during the same period of time.
Limitation criteria--Criteria in § 1103.4(b) (relating to selection and limitation criteria; authorization process) which the Department has established to limit the number of WIC authorized stores in a particular area to assure that State and local officials can effectively manage, review and monitor WIC authorized stores.
Local agency--A public or private nonprofit health or human service agency with which the Department contracts to provide WIC Program services for a specific geographic area.
Nutritional risk--A determination that one of the following exists:
(i) Detrimental or abnormal nutritional conditions detectable by biochemical or anthropometric measurements.
(ii) Other documented nutritionally related medical conditions.
(iii) Dietary deficiencies that impair or endanger health.
(iv) Conditions that predispose persons to inadequate nutritional patterns or nutritionally related medical conditions.
Onsite review--An overt visit to a store by Federal, Department or local agency personnel to determine if the store meets the selection criteria necessary to be certified or recertified as a WIC authorized store, or a visit to a WIC authorized store after certification or recertification, to determine whether the store is complying with this part governing the store's participation in the WIC Program.
Participant--A pregnant woman, breast-feeding woman, postpartum woman, infant or child enrolled in the WIC Program.
Participant certification period--The period of time during which an individual is authorized to participate in the WIC Program.
Postpartum woman--A woman, during 6 months after termination of pregnancy.
Pregnant woman--A woman determined to have one or more embryos or fetuses in utero.
Proxy--A person authorized by the local agency and the participant, or by the participant's parent or guardian if the participant is an infant or child, to pick up or use WIC checks to make purchases for that participant.
Recertification--The Department's authorization of a WIC authorized store, following a review process, to continue as a WIC authorized store.
Redeem--A WIC authorized store submitting a WIC check to its bank for the purpose of securing a money payment for the amount appearing in the ''Pay Exactly'' box on the WIC check.
Sales floor--The display shelving, the floor in the area normally used for retail trade and the area behind the customer service desk, excluding other areas not accessible to the general public.
Sanction--A penalty imposed by the Department upon a WIC authorized store for violation of this part governing the store's participation in the WIC Program. The term does not include a decision to deny certification or recertification following a certification or recertification onsite review process.
Secretary--The Secretary of Health of the Commonwealth.
Selection criteria--Criteria in § 1103.4(a) which the Department has established which a store seeking to be certified or recertified is required to satisfy.
Standard formula--Infant formula products that do the following:
(i) Meet the Federal WIC regulatory definition of an iron-fortified formula (7 CFR 246.10 (c)(1)(I) (relating to supplemental foods)).
(ii) Comply with the Infant Formula Act of 1980, the act of September 26, 1980 (Pub.L. No. 96-359, 94 Stat. 1190), which amended the Food and Drug Act.
(iii) Meet the requirements of an ''infant formula'' as opposed to an ''exempt infant formula'' or ''medical food'' as determined by the Food and Drug Administration (FDA), United States Department of Health and Human Services.
Stale-dated--After the date imprinted on the product as the recommended last date for sale or use.
Store slot--A slot established by the Department for a WIC authorized store in a particular geographic area. The number of store slots the Department authorizes for a geographic area assigned to a local agency is based on the expected participant population of that area.
Trade area--A designated geographic area within the geographical area assigned to a local agency, which is organized to serve the participant populations in that designated area through an assigned number of store slots.
Training buy--The presentation of a WIC check by a Federal, Department or local agency representative to purchase foods at a WIC authorized store, which does not result in the actual tender of the WIC check or the purchase of the foods, to evaluate adherence by a WIC authorized store with this part governing the store's participation in the WIC Program.
USDA-FNS--The United States Department of Agriculture, Food and Nutrition Service.
WIC authorized store--A retail food store which is authorized through certification or recertification to provide allowable foods to participants by accepting WIC checks.
WIC check--A negotiable instrument issued to participants to purchase allowable foods at WIC authorized stores.
WIC food list--A list published by the Department in the Pennsylvania Bulletin of foods and infant formula which may be purchased with WIC checks.
WIC identification card--A document issued by the Department to a participant, which is used for identification purposes, signature verification and authorization to purchase allowable foods with WIC checks at a WIC authorized store.
WIC Program--The Special Supplemental Nutrition Program for Women, Infants and Children.
WIC Program benefits--Supplemental foods, nutrition education and referral to health services.
§ 1101.3. Administration.
(a) Department responsibilities. The Department will develop policies and procedures for the operation of the WIC Program, distribute funds to local agencies to assist the Department in operating the WIC Program, authorize stores to participate in the WIC Program, monitor and evaluate WIC Program services provided by WIC authorized stores, maintain fiscal records, submit reports and carry out all other responsibilities delegated to it by the USDA-FNS for the operation of the WIC Program.
(b) Local agency responsibilities. Local agencies shall determine whether participants meet eligibility criteria developed by the Department, develop food prescriptions for participants, provide nutrition education to participants, provide referral information regarding ongoing health services, issue WIC checks to participants to purchase allowable foods and ensure that all participants are served without discrimination. Local agencies shall function as representatives of the Department in conducting certification and recertification reviews, and in monitoring the activities of WIC authorized stores.
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