[29 Pa.B. 3841]
[Continued from previous Web Page] § 1105.6. Monitoring of WIC authorized stores.
(a) Purpose and types of monitoring of WIC authorized stores. Federal, State or local representatives will conduct announced and unannounced onsite reviews of WIC authorized stores to determine compliance with applicable Federal and State regulations, and to investigate complaints regarding a store. The types of onsite reviews that may be conducted for monitoring purposes are high risk reviews, routine reviews and training buys.
(b) High risk reviews. The Department will monitor all high risk stores. The Department will use either compliance investigations or inventory audits as methods to monitor high risk stores. The Department also may conduct compliance buys and inventory audits on stores that have not been identified as high risk stores.
(1) Compliance investigations. The following standards shall apply:
(i) The Department will conduct at least two compliance buys during a compliance investigation.
(ii) The Department will not notify the WIC authorized store that a compliance buy is scheduled.
(iii) The Department will provide written notification to the WIC authorized store of the results of each compliance buy, including the store's violation of a statute or regulation governing its participation in the WIC Program, unless subparagraph (viii) applies.
(iv) The Department will provide to the personnel of the WIC authorized store mandatory corrective training after two compliance buys detect violations of statutes or regulations governing the store's participation in the WIC Program.
(v) The Department will conduct a third compliance buy at the WIC authorized store after store personnel have attended mandatory corrective training.
(vi) The Department will disqualify the store if three compliance buys detect violations of statutes or regulations governing the store's participation in the WIC Program. The Department will determine the term of disqualification by the violation found during the compliance investigation, in accordance with § 1107.1 (relating to sanctions). If multiple violations are found during the compliance investigation, the Department will disqualify the store for the term corresponding to the most serious violation.
(vii) The Department will close the compliance investigation on a WIC authorized store if no violations of a statute or regulation governing the store's participation in the WIC Program are discovered after two consecutive compliance buys.
(viii) The Department may withhold notification of compliance buy results, and may withhold providing training or conducting further compliance investigations, when fraudulent activities by the WIC authorized store are indicated during a compliance investigation or by local agency or participant complaint.
(2) Inventory audits. The Department will disqualify the WIC authorized store when an inventory audit establishes the claim of reimbursement for authorized food in excess of documented inventory. No warning letters will be issued.
(c) Routine reviews. The Department will use reviews as follows to determine whether a WIC authorized store is in compliance with the selection and limitation criteria in § 1103.4(a) and (b) (relating to selection and limitation criteria; authorization process) and terms and conditions of participation in § 1105.3 (relating to terms and conditions of participation):
(1) The Department will not notify the WIC authorized store that a routine review is scheduled.
(2) The Department will provide written notification to the WIC authorized store of the results of each routine review, including violation of a statute or regulation governing the store's participation in the WIC Program.
(3) The Department will conduct a second routine review of the WIC authorized store if the first routine review detects violations of a statute or regulation governing the store's participation in the WIC Program.
(4) The Department will provide to the personnel of the WIC authorized store mandatory corrective training after two routine reviews detect violations of a statute or regulation governing the store's participation in the WIC Program.
(5) The Department will conduct a third routine review of a WIC authorized store after store personnel have attended mandatory corrective training.
(6) The Department may disqualify a store if a third routine review detects violations of a statute or regulation governing the store's participation in the WIC Program. The Department will determine the term of disqualification by the violation found during the routine reviews, in accordance with § 1107.1. If multiple violations are found during the routine reviews, the Department will disqualify the store for the term corresponding to the most serious violation.
(d) Training buys. The Department will use training buys to monitor WIC check transaction procedures and compliance with statutes and regulations governing the store's participation in the WIC Program. The following standards apply:
(1) The Department will not notify the WIC authorized store that a training buy is scheduled.
(2) The Department will provide written notification to the WIC authorized store of the results of each training buy, including violations of a statute or regulation governing the store's participation in the WIC Program.
(3) The Department will conduct a second training buy at the WIC authorized store if the first training buy detects violations of a statute or regulation governing the store's participation in the WIC Program.
(4) The Department will provide the personnel of the WIC authorized store mandatory corrective training after two training buys detect violations of a statute or regulation governing the store's participation in the WIC Program.
(5) The Department will conduct a third training buy at the WIC authorized store after store personnel have attended the mandatory corrective training.
(6) The Department may disqualify a store if a third training buy detects violations of a statute or regulation governing the store's participation in the WIC Program. The Department will determine the term of disqualification by the violation found during the training buys, in accordance with § 1107.1. If multiple violations are found during the training buys, the Department will disqualify the store for the terms corresponding with the most serious violation.
(e) Use of law enforcement agency. The Department may utilize a law enforcement agency in the investigation of a WIC authorized store or other store suspected of trafficking WIC checks or other fraud or abuse of the WIC Program.
(f) Reimbursement. The Department will seek reimbursement from a WIC authorized store that received funds improperly due to a violation of regulations governing the store's participation in the WIC Program discovered during monitoring reviews. The Department will send notice to the store of the amount of money to be reimbursed to the WIC Program. The store shall make payment within 20 days from the date of the notice.
CHAPTER 1107. SANCTIONS Sec.
1107.1. Sanctions. 1107.2. Civil money penalties. § 1107.1. Sanctions.
(a) The Department will impose a sanction against a store based upon the severity and nature of the violation of the statute or regulation governing the store's participation in the WIC Program.
(b) In addition to imposing a sanction against a WIC authorized store that commits fraud or abuse of the WIC Program, the Department may prosecute or make a referral for prosecution of the WIC authorized store to a criminal prosecution agency for prosecution under applicable Federal, State or local laws.
(c) A WIC authorized store that has a sanction imposed against it by the Department for accepting a WIC check for items other than those specified on the WIC check shall also reimburse the Department for moneys received for the purchase of the items with the WIC check.
(d) The Department may impose a sanction against a WIC authorized store for failing to remit any amount demanded due to violations of statutes or regulations governing its participation in the WIC Program within the time frame in § 1105.2(f) and (g) (relating to overcharge recovery system) or the notice given by the Department under § 1105.6(f) (relating to monitoring of WIC authorized stores).
(e) Upon receiving notification that a WIC authorized store has been disqualified from another USDA-FNS program, such as the USDA Food Stamp Program, the Department will disqualify the WIC authorized store for an equivalent period of up to 3 years.
(f) The Department may disqualify from participation in the WIC Program a WIC authorized store if the store incurs a civil money penalty in lieu of disqualification from another USDA-FNS program, such as the USDA Food Stamp Program. If the Department finds that participant hardship would result from the disqualification of the store from the WIC Program, the Department may, at its option, offer the store the option of paying a civil money penalty in lieu of disqualification.
(g) The Department will notify the USDA-FNS of a store's disqualification from the WIC Program. Disqualification from the WIC Program may result in the store's disqualification from the USDA Food Stamp Program.
(h) Specific sanctions. The Department will determine the type and level of sanction to be imposed against a WIC authorized store for a violation of a statute or regulation governing the store's participation in the WIC Program.
(1) Class A abuses. The Department will disqualify a WIC authorized store from participation in the WIC Program for 1 year for the following violations:
(i) Redeeming a WIC check for an item that is in a food category authorized by the WIC Program but is not an allowable food or is not specified on the WIC check.
(ii) Having stale-dated allowable food on the sales floor.
(iii) Failing to maintain minimum inventory requirements of an allowable food.
(iv) Failing to request the participant's WIC identification card prior to accepting a WIC check.
(v) Accepting a WIC check made payable to another store without prior written approval from the Department.
(vi) Failing to maintain a clean and sanitary store.
(vii) Failing to properly store and refrigerate allowable foods.
(viii) Closure of the store by a city, local or county health department.
(ix) Charging or demanding that a participant pay for an allowable food with the participant's own money or with another WIC check for purchases made with a WIC check.
(x) Securing the signature of the participant, endorser or proxy prior to completing the ''Pay Exactly'' box on the WIC check.
(xi) Overcharging the WIC Program by charging sales tax or allowing the purchase with a WIC check of more of an allowable food than authorized on the WIC check.
(xii) Having or charging prices which exceed the current maximum allowable costs established by the Department and published in the Pennsylvania Bulletin for either Food Prescription One or Food Prescription Two set forth in § 1103.4(a)(6)(i) and (ii) (relating to selection and limitation criteria; authorization process).
(2) Class B abuses. The Department will disqualify a WIC authorized store from participation in the WIC Program for 2 years for the following violations:
(i) Redeeming a WIC check for food that is not in a food category authorized to be purchased with a WIC check.
(ii) Charging the WIC Program more for an allowable food than a customer who is not a participant is charged for the same item.
(iii) Charging the WIC Program more than the current price for an allowable food.
(iv) Giving monetary change to an authorized individual who tenders a WIC check.
(v) Failing to remit payment for an overcharge within the specified time frame.
(vi) Charging the WIC Program for an allowable food which was not purchased with a WIC check.
(vii) A repeated Class A violation.
(3) Class C abuses. The Department will disqualify a WIC authorized store from participation in the WIC Program for 3 years for the following violations:
(i) Accepting a WIC check for cash, credit or a nonfood item.
(ii) Physically altering or changing on the face of a WIC check the store name, food type or quantity, participant information, date or printed dollar amount.
(iii) Redeeming WIC checks for the sale of an amount of an allowable food over a period of time which exceeds the WIC authorized store's documented inventory for the same allowable food for the same period of time.
(iv) A repeated Class B violation.
(i) For a violation of a statute or regulation governing the store's participation in the WIC Program which is not specifically classified as a Class A, Class B or Class C sanction as provided for in subsection (h), the Department will determine the appropriate type and level of sanction to be imposed upon the store based upon the nature and severity of the violation.
(j) The Department will provide a WIC authorized store at least a 15 day advance notice of the effective date of any disqualifications and an opportunity to appeal the disqualification in accordance with § 1113.1 (relating to right to appeal).
(k) A store which has been disqualified from the WIC Program may apply for certification following expiration of the disqualification period. If the store chooses to apply for certification after expiration of the disqualification, the Department will not consider the prior disqualification from the WIC Program when determining eligibility, and the store will be considered in accordance with § 1103.4 if a store slot is available, or placed on a waiting list in accordance with § 1103.6 (relating to waiting list) if no store slot is available.
§ 1107.2. Civil money penalties.
(a) Option available in lieu of a disqualification. The Department may offer to a store the option of paying a civil money penalty in lieu of a denial of recertification or a disqualification required under § 1107.1 (relating to sanctions), only if the Department finds participant hardship as set forth in § 1103.7 (relating to participant hardship).
(b) Calculation of civil money penalty. The Department will calculate the civil money penalty the store shall pay by multiplying 5% of the average monthly total value of WIC checks redeemed for the most recent 6-month period by the number of months the store would be disqualified under § 1107.1. For stores which are denied recertification for which this option is available, the Department will multiply 5% of the average monthly total value of WIC checks for the most recent 6-month period by 6 months to determine the civil money penalty to be paid. If 6 months of information relating to the monthly value of WIC checks redeemed is not available, the Department will calculate the monthly average based upon the number of months for which information is available.
(c) Written agreement. If the Department offers and the store agrees to pay a civil money penalty in lieu of disqualification, the Department and store shall set forth the terms of the agreement in writing. The terms may include a probationary period during which the Department may conduct monitoring to ensure action has been taken by the store to correct problems. The agreement shall be effective upon the signature of the Director of the Division of WIC or the Director's designee.
(d) Payment of the civil money penalty. The store shall pay the civil money no later than 30 days from the effective date of the penalty agreement, as set forth in subsection (c). Failure of the store to pay the civil money penalty when due shall be grounds for the Department to rescind the agreement and shall result in reinstatement of the disqualification.
(e) Continued compliance with regulations. A store which pays a civil money penalty is required to continue to comply with regulations governing the store's participation in the WIC Program. If the store commits additional violations of the regulations governing the store's participation in the WIC Program, the Department will consider the violations for which the store paid the civil money penalty in determining the type and magnitude of sanction to be imposed against the store.
(f) Outstanding financial liabilities. Payment of the civil money penalty, unless specifically provided for in a written agreement between the Department and the store, does not relieve the store of any other past or future financial liability incurred by the store by reason of its participation in the WIC Program. This includes, by way of example, payment of outstanding overcharges or payments owed the Department for the unauthorized sale of foods.
CHAPTER 1109. ADMINISTRATIVE APPEALS Sec.
11091. Applicability of general rules. 1109.2. Scope and purpose. 1109.3. Time limits for action. § 1109.1. Applicability of general rules.
1 Pa. Code Part II (relating to general rules of administrative practice and procedure) applies to proceedings under this part, except as otherwise provided in this part.
§ 1109.2. Scope and purpose.
Chapters 1111 and 1113 (relating to applicant and participant appeals; and local agency and store appeals) apply to hearings held under 42 U.S.C.A. § 1786(f)(9), relating to the WIC Program. Those chapters supplement the Federal regulations, 7 CFR Part 246 (relating to special supplemental nutrition program for women, infants, and children) governing hearings afforded under this part to applicants, participants, stores denied certification or recertification and local agencies, and supplement or supersede regulations in 1 Pa. Code Part II (relating to General Rules of Administrative Practice and Procedure) when their application would be inappropriate or inadequate.
§ 1109.3. Time limits for action.
Time limits in §§ 1111.10(d) and 1113.3(b) (relating to hearing examiner decisions; and adjudication and order) are directory.
CHAPTER 1111. APPLICANT AND PARTICIPANT APPEALS Sec.
1111.1. Applicant and participant appeal rights. 1111.2. Notification of appeal rights. 1111.3. Appeal of a local agency decision. 1111.4. Time for appeal of a local agency decision. 1111.5. Scheduling the hearing. 1111.6. Denial or dismissal of appeal. 1111.7. Continuation of benefits. 1111.8. Rights of the appellant. 1111.9. Hearing record. 1111.10. Hearing examiner decisions. 1111.11. Appeal to the Secretary. 1111.12. Adjudication and order procedures. 1111.13. Judicial review. § 1111.1. Applicant and participant appeal rights.
This chapter applies to applicants, participants and their authorized representatives, in pursuing appeals from decisions that adversely impact upon the participation of applicants and participants in the WIC Program.
§ 1111.2. Notification of appeal rights.
(a) At the time of the denial of an application to become a participant, removal from the WIC Program as a participant, or placement on a waiting list to become a participant, the local agency shall inform in writing the adult applicant or participant, or the parent or guardian of a child or infant applicant or participant, of the right to appeal the decision, of the method by which an appeal may be filed, and that any positions or arguments on behalf of the applicant or participant may be presented personally or by an authorized representative, such as a relative, friend, legal counsel or other spokesperson. The expiration of the participant's certification period occurs automatically and is not appealable.
(b) The local agency shall use forms provided by the Department to provide notice of appeal rights to the adult applicant or participant, or the parent or guardian of an infant or child applicant or participant.
§ 1111.3. Appeal of a local agency decision.
(a) An appeal is any clear expression by the applicant, participant or authorized representative, that the decision of the local agency is contested and that an opportunity to challenge the decision and to present the case of the applicant or participant to a higher authority is desired. The Department or local agency will not limit or interfere with the freedom of the applicant, participant or authorized representative to appeal the decision and will provide whatever assistance is necessary to reduce an oral appeal to writing.
(b) When an appeal is made orally, the local agency shall docket it as being filed when the local agency receives the oral communication.
§ 1111.4. Time for appeal of a local agency decision.
The applicant, participant or authorized representative shall appeal within 90 days after the date the local agency mails or delivers to the adult applicant or participant, or parent or guardian of an infant or child applicant or participant, written notice of the action to deny or terminate benefits under the WIC Program. An appeal is timely filed if it is received by the local agency within the 90-day period.
§ 1111.5. Scheduling the hearing.
(a) Appointment of a hearing examiner. The local agency shall appoint a hearing examiner to preside over the appeal. The hearing examiner shall be an impartial official who does not have a personal stake or involvement in the decision, and who was not directly involved in the action being contested.
(b) Notification of the appeal. The local agency shall notify the hearing examiner of the appeal and the date on which it was docketed.
(c) Time frame for scheduling a hearing. The hearing examiner shall schedule the hearing within 3 weeks from the docketed date of the appeal. The hearing examiner shall provide the appellant participant or authorized representative with a minimum of 10 days advance written notice of the time and place of the hearing.
(d) Standards for scheduling the hearing. The hearing examiner shall use the following standards in scheduling a hearing:
(1) The place of the hearing may not be further from the residence of the applicant or participant than the county seat of the county in which the applicant or participant resides. If the county seat is unsuitable due to the health of the applicant or participant, transportation problems, convenience of witnesses or for other legitimate reasons, an alternative place of hearing shall be a location convenient to the home of the applicant or participant.
(2) If the applicant, participant or authorized representative wants to postpone the hearing, that individual shall contact the hearing examiner, and the local agency and provide them with a reason for postponement. If the hearing is postponed by the hearing examiner, the hearing examiner shall reschedule it as soon as possible.
(3) An applicant, participant or authorized representative may withdraw the appeal at any time before a decision is issued by the hearing examiner. This withdrawal shall be in writing and directed to the hearing examiner.
(4) If the applicant or participant fails to appear at the scheduled hearing in person or by authorized representative, without good cause as determined by the hearing examiner, the appeal shall be considered abandoned and shall be discontinued.
(e) Independent assessment. The hearing examiner shall order, when relevant and necessary, an independent medical assessment or professional evaluation of the applicant or participant from a source mutually satisfactory to the applicant or participant or its authorized representative, and the local agency.
(f) Supersession. Subsection (d)(3) supersedes 1 Pa. Code § 35.51 (relating to withdrawal of pleadings).
§ 1111.6. Denial or dismissal of appeal.
The hearing examiner may not deny or dismiss an appeal unless one of the following occurs:
(1) The appeal is not received by the local agency within the time limit in § 1111.4 (relating to time for appeal of a local agency decision).
(2) The appeal is withdrawn in writing by the applicant, participant or authorized representative.
(3) The applicant, participant or authorized representative fails, without good cause, to appear at the scheduled hearing.
§ 1111.7. Continuation of benefits.
(a) If at any time during a participant's certification period, the local agency finds the participant to be ineligible to continue enrollment in the WIC Program, the local agency shall advise the participant in writing not less than 15 days before termination of the reason for ineligibility and of the right to appeal. If an appeal is received within 15 days after service of the notice of ineligibility, benefits shall continue until the hearing examiner reaches a decision or the certification period expires, whichever occurs first.
(b) An applicant denied initial enrollment, or an authorized representative of the applicant, may appeal the denial, but the applicant may not receive benefits while awaiting disposition of the appeal.
§ 1111.8. Rights of the appellant.
(a) When an appeal is filed, the local agency shall inform the applicant or participant denied benefits, or an authorized representative, of the rights set forth in subsection (b).
(b) An applicant or participant who files an appeal, or on whose behalf the appeal is filed, has the following rights:
(1) To appear in person at the hearing.
(2) To represent himself, or to be represented by an authorized representative such as an attorney, friend or other person at the hearing.
(3) To receive an explanation that he may contact the local bar association for assistance in locating legal services.
(4) To present oral or documentary evidence, witnesses and arguments to support the position of the applicant or participant in accordance with procedures established by the hearing examiner.
(5) To request a subpoena from the hearing examiner for the production of evidence or witnesses that the applicant, participant or authorized representative, determines are important to establish necessary facts
(6) To request that the local agency provide an interpreter at the hearing if an adult applicant or participant, or the parent or guardian of an infant or child applicant or participant, does not understand English or is hearing impaired.
(7) To examine upon request, both before and during the hearing, the materials which the Department or local agency has on file relative to the case which are not confidential.
(8) To be provided with the names of the local agency staff members and witnesses who will be present at the hearing.
(9) To question or refute any testimony or other evidence presented against the applicant or participant and to confront and cross-examine adverse witnesses.
(10) To examine, prior to and during the hearing, documents and records that will be presented to support the decision under appeal.
(11) To further appeal the final decision of the hearing examiner to the Secretary within 15 days of the mailing date of the hearing examiner's decision.
(12) To appeal the adjudication and order of the Secretary or agency head designated by the Secretary to the Commonwealth Court within 30 days of the mailing date of the adjudication and order.
(c) Supersession. Subsection (b)(1) supplements 1 Pa. Code § 31.21 (relating to appearance in person). Subsection (b)(2) supersedes 1 Pa. Code §§ 31.22 and 31.23 (relating to appearance by attorney; and other representation prohibited at hearings). Subsection (b)(5) supplements 1 Pa. Code § 35.142 (relating to subpoenas).
§ 1111.9. Hearing record.
(a) Contents of the record. The verbatim transcript or recording of testimony and exhibits, or an official report containing the substance of what transpired at the hearing, together with all papers and requests filed in the proceeding, shall constitute the hearing record. This record shall be available to the applicant, participant or authorized representative, for copying and inspection at any reasonable time
(b) Retention of the record. This record shall be retained for 3 years.
(c) Public inspection of the record. Department and local agency hearing records and decisions shall be available for public inspection and copying, provided the names and addresses of participants and other members of the public are kept confidential.
(d) Supersession. Subsection (a) supersedes 1 Pa. Code § 35.131 (relating to recording of proceedings).
§ 1111.10. Hearing examiner decisions.
(a) The hearing examiner shall render a decision based exclusively on the evidence contained in the hearing record.
(b) The decision of the hearing examiner shall comply with applicable Federal law, and Federal and State regulations.
(c) A decision by the hearing examiner shall summarize the facts of the case, specify the reasons for the decision, and identify the supporting evidence and the pertinent regulations or policy. The decision shall become a part of the record. A decision adverse to the position of the local agency shall be binding on the local agency.
(d) Within 45 days after the filing date of the appeal, the hearing examiner shall provide the applicant, participant, or authorized representative, and the local agency, a copy of the hearing examiner's decision.
(e) If the decision of the hearing examiner is in favor of the applicant or participant and benefits had been denied or discontinued, the local agency shall begin or resume providing benefits immediately upon the mailing date of the decision.
(f) If the decision is in favor of the local agency, the notice accompanying the decision of the hearing examiner to the applicant, participant or authorized representative shall include notice of the right to appeal to the Secretary. Immediately upon the date of the hearing examiner's decision, the local agency shall discontinue providing any benefits which had been continued pending issuance of the hearing examiner's decision.
(g) Subsection (a) supersedes 1 Pa. Code § 35.201 (relating to certification of record without proposed report).
§ 1111.11. Appeal to the Secretary.
If the applicant, participant or authorized representative, chooses to appeal the decision of the hearing examiner, that individual shall file a written appeal with the Secretary within 15 days of the mailing date of the decision of the hearing examiner. The appeal shall contain a statement of reasons for reversing the decision of the hearing examiner. If the appeal asks for permission to present additional evidence, it shall:
(1) Identify the additional evidence.
(2) Explain why it was not previously introduced.
(3) Explain its materiality unless it is obvious.
§ 1111.12. Adjudication and order procedures.
(a) In reaching a decision on the appeal, the Secretary or an agency head designated by the Secretary may:
(1) Reconsider the decision on the basis of the evidence in the record.
(2) Admit additional evidence.
(3) Order a new hearing.
(b) In cases in which the hearing examiner's decision has resulted in a termination of benefits to the participant, there shall be no reinstatement of benefits upon filing of an appeal to the Secretary. The reinstatement of benefits, if granted, shall be solely as a result of the adjudication and order of the Secretary or designated agency head.
§ 1111.13. Judicial review.
The Secretary or designated agency head will issue an adjudication and order after considering the appeal. If the adjudication and order is adverse to the interest of the applicant or participant, the adjudication and order shall state, or be accompanied by a notice stating, that the applicant or participant has the right to appeal the adjudication and order to Commonwealth Court within 30 days after the mailing of the adjudication and order.
CHAPTER 1113. LOCAL AGENCY AND STORE APPEALS. Sec.
1113.1. Right to appeal. 1113.2. Appeal procedures. 1113.3. Adjudication and order. 1113.4. Continuing responsibilities. 1113.5. Judicial review. § 1113.1. Right to appeal.
A store or local agency adversely affected by a Division of WIC action has the right to appeal. The right of appeal shall be granted when a local agency's or store's application to participate in the WIC Program is denied; or during the course of an agreement or period of authorization, when a local agency or store is disqualified; or when any other adverse action which affects participation is taken against the store or local agency by the Division of WIC. The expiration of a WIC authorization is not subject to appeal. The appeal process is designed to secure and protect the interest of both the store or local agency and the Division of WIC and to ensure equitable treatment for all involved. The adverse action shall be postponed until the hearing examiner issues an adjudication and order.
§ 1113.2. Appeal procedures.
(a) Notification. At the time the Division of WIC takes an adverse action against a local agency or store, the Division of WIC will notify the local agency or store of its right to an administrative appeal.
(b) Form of appeal. The appeal shall be made by the local agency or store or its authorized representative, in writing, stating the reasons for the appeal.
(c) Time for filing an appeal. The appeal shall be filed with the Director of the Division of WIC within 30 days after any final decision by the Division of WIC.
(d) Scheduling the hearing.
(1) The Director of the Division of WIC shall forward the appeal to the office of the hearing examiner.
(2) The hearing examiner shall set a time, date and place for the hearing.
(3) The hearing examiner shall send notice to the local agency or store, or its authorized representative, at least 10 days in advance of the date of the hearing.
(4) The hearing examiner shall schedule the hearing to be held within 21 days after the date of receipt by the Division of WIC of the local agency or store appeal.
(5) The Department or the appellant may request in writing that the hearing be rescheduled for another time or date and the hearing examiner shall consider the request.
(e) Hearing examiner. The Secretary will appoint a hearing examiner to preside over the appeal. The person shall be an impartial decision-maker, whose decision as to the validity of the Department's action shall rest solely on the evidence presented at the hearing and the statutory and regulatory provisions governing the program, and who may not have participated in the decision made by the Division of WIC or have a personal stake in the outcome.
(f) Hearing procedures.
(1) The local agency or store may be assisted or represented by an attorney or other authorized representative.
(2) The local agency or store, or its authorized representative, may examine, prior to and during the hearing, the documents and records considered by the Division of WIC in reaching its decision under appeal.
(3) The hearing shall be open to the public.
(4) Each party shall have the opportunity to present and cross-examine witnesses.
(5) Each party may present oral or documentary evidence and arguments to support its position in narrative form.
(6) Each party may object to or attempt to refute any testimony or other evidence presented by the other party.
(g) Supersession. Subsection (d) supersedes 1 Pa. Code § 35.105 (relating to notice of nonrulemaking procedures). Subsection (e) supersedes 1 Pa. Code § 35.185 (relating to designation of presiding officers). Subsection (f)(1) supplements 1 Pa. Code § 31.21 (relating to appearance in person) and supersedes 1 Pa. Code §§ 31.22 and 31.23 (relating to appearance by attorney; and other representation prohibited at hearings).
§ 1113.3. Adjudication and order.
(a) The adjudication and order shall include findings of fact and conclusions of law. The findings of fact shall be based only on the oral and documentary evidence in the hearing record.
(b) The hearing examiner shall provide the Director of the Division of WIC and the local agency or store, or its authorized representative, with the adjudication and order within 60 days after the date of the receipt by the Division of WIC of the appeal, adjusted for any continuance of the hearing that causes it to be held more than 21 days after the date the appeal was filed.
(c) The hearing examiner shall maintain a written record of the hearing. The record shall include a docket number and caption for the appeal, any documentary evidence submitted, the transcript of the testimony presented at the hearing, the adjudication and order of the hearing examiner, and a copy of the document transmitting the adjudication and order to the local agency or store, or its authorized representative.
(d) Paragraphs (a)--(c) supersede 1 Pa. Code §§ 35.131, 35.201, 35.202 and 35.205.
§ 1113.4. Continuing responsibilities.
Appealing an action does not relieve the local agency or store from the responsibility of continued compliance with the terms of any written agreement or contract with the Department or certification or recertification by the Department.
§ 1113.5. Judicial review.
If the adjudication and order of the hearing examiner is rendered against the local agency or store, the hearing examiner will inform the local agency or store within the adjudication and order, or by notice accompanying the adjudication and order, of the right to pursue judicial review of the adjudication and order.
[Pa.B. Doc. No. 99-1176. Filed for public inspection July 23, 1999, 9:00 a.m.]
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