RULES AND REGULATIONS
Title 28—HEALTH
AND SAFETY
DEPARTMENT OF HEALTH
[28 PA. CODE CHS. 1101, 1103, 1105,
1107 AND 1113]
Supplemental Nutrition Program for Women, Infants and Children
[39 Pa.B. 5292]
[Saturday, September 12, 2009]The Department of Health (Department), Bureau of Family Health, Division of WIC (WIC Program), amends 28 Pa. Code Chapters 1101, 1103, 1105, 1107 and 1113. The chapters govern the authorization and management of stores participating in the Special Supplemental Nutrition for Women, Infants and Children (WIC) Program.
Without some of these revisions, the United States Department of Agriculture, Food Nutrition Services (USDA-FNS) may withhold funding to the WIC Program. If Federal funding is interrupted, the Department would likely need to suspend or eliminate the WIC Program, having a significant negative impact on the health and welfare of WIC eligible women, infants and children. Loss or even suspension of Federal funding for the WIC Program would render it inoperable, as 100% of the WIC Program's funds are Federal funds; or would place a difficult, if not impossible, financial burden on the Commonwealth, should the Commonwealth continue to operate the WIC Program with state funds. The WIC Program serves approximately 260,000 families and individuals each month, and is a high profile benefits program not only in this Commonwealth, but also around the country. An interruption in the funding of the WIC Program would affect the receipt of necessary food benefits for the participants of the WIC Program, the retail grocery business and the employment of personnel at 24 local WIC agencies.
Other revisions to the WIC Program State regulations include the addition of language which allows the WIC Program to more smoothly incorporate technological advancements. These advancements ensure that the Pennsylvania WIC Program remains at the forefront of quality and efficiency and continues to provide the best experience for WIC participants and WIC authorized stores.
The Department published notice of the proposed rulemaking at 38 Pa.B. 4767 (August 30, 2008), and provided a 30-day public comment period. There were no comments submitted from the public.
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), the Department submitted a copy of the proposed regulations on August 15, 2008, to the Independent Regulatory Review Commission (IRRC) and to the House Health and Human Services Committee and the Senate Public Health and Welfare Committee (Committees). In addition to submitting the proposed regulations, the Department provided IRRC and the Committees with a copy of a Regulatory Analysis Form prepared by the Department in compliance with Executive Order 1996-1, ''Regulatory Review and Promulgation.'' There were no comments submitted by the Committees. IRRC submitted comments to the Department on October 29, 2008. The comments and the Department's responses to them appear in the summary of the final-form rulemaking.
A. Comments and Revisions
Section 1101.2. Definitions.
IRRC suggested the Department explain the phrase ''Federally-mandated cost containment measures.'' The phrase ''Federally-mandated cost containment measures'' refers to the requirement that states establish peer group pricing and competitive pricing as found in 7 CFR 246.12(g)(4)(ii) (relating to food delivery systems).
IRRC also noted the proposed definition for ''peer group'' referred to ''criteria selected by the Department,'' and the proposed definition for ''store peer group system'' referred to ''common characteristics'' or ''criteria that affect food prices.'' IRRC suggested the Department provide examples of such criteria for both phrases. In response to IRRC's request, the Department supplemented the phrase ''criteria selected by the Department'' in the definition of ''peer group'' with, ''including the size of a store sales floor, number of cash registers in the store, number of stores owned and county where the store is located.'' The Department also supplemented the phrase ''common characteristics'' and ''criteria that affect food prices'' in the definition of ''store peer group system'' with ''the size of a store sales floor, number of cash registers in the store, number of stores owned, and a measure of geography, such as metropolitan or other statistical areas that form distinct labor and product markets.''
Section 1103.1. Authorization and reauthorization process and requirements.
IRRC noted that proposed subsections (b)(5) and (c)(2) refer to ''any information necessary'' for the Department to determine whether the store qualifies as an above-50-percent-store. IRRC suggested the Department provide examples of the relevant ''information'' needed. In response to IRRC's request, the Department added the following language ''this information may include official State and Federal Income Tax Filings, official State Sales Tax records, inventory purchase records, sales records and/or a self-declaration from the applicant.''
IRRC also noted that proposed subsection (d)(7) states that if the Department does not receive from the store the information requested to determine if the store qualifies as an above-50-percent-store within 20-calendar days, the Department will terminate a store's authorization or reauthorization. IRRC inquired about the appropriateness of this time frame. The 20-day time period was selected to remain consistent with current WIC Program policy to give 20 days for payment or receipt of items (see the explanation of § 1107.1a(d)(13)) (relating to disqualifications). If those items are not received within 20 days, a ''Late Due Notice'' is sent to the store giving them an additional 10 days. If the items are not received after those additional 10 days, a disqualification letter is sent to the store which gives the store an additional 30 days to submit the items. If the items are still not received, the store is disqualified. This disqualification can be appealed by a store.
Section 1103.4. Selection criteria for authorization and reauthorization.
IRRC noted that under proposed paragraph (15), the Department will provide notice by September 15 of minimum technology requirements for the following year. IRRC asked whether notice by September 15 would allow a store sufficient time to purchase, test and implement the new technology in all circumstances, given the potential magnitude of the technological change. Stores will have ample time to purchase, test and implement the new technology requirement because this paragraph will apply only to new stores applying for initial authorization. Stores authorized prior to the effective date of this paragraph, maintaining an uninterrupted authorized status, will be exempt from the requirements of this paragraph. If a store applies for authorization, it will be required to ''meet the minimum technology requirement'' which is set by the Department prior to the start of that Federal Fiscal Year.
Section 1103.8. Store peer group system.
IRRC noted proposed subsection (b) stated the Department will create peer groups ''based upon at least two criteria selected by the Department. . . .'' IRRC further noted this subsection lists a measure of geography as one criterion, but it does not explain the second. IRRC suggested the Department should explain both criteria. In response, the Department has revised the subsection to explain the criteria as ''the size of a store sales floor, number of cash registers in the store, number of stores owned, and a measure of geography, such as metropolitan or other statistical areas that form distinct labor and product markets.''
Section 1107.1a. Disqualifications.
IRRC inquired about how long a store must be in violation of this section before it will be subject to a 1 year disqualification. IRRC also asked if the store will receive notice of the violation and be given an opportunity to cure it before it being disqualified, what happens after the 1 year period ends, and the procedure by which a store becomes reauthorized.
There are many reasons for disqualification in this section, all of which can be appealed by a store. All State WIC programs are required by Federal regulation at 7 CFR 246.12(j) to monitor WIC authorized stores for compliance with WIC regulations, and stores must follow WIC regulations, even when not under investigation.
Violation of § 1107.1a(d)(4) would be observed during a retail store monitoring review. All WIC programs are required to annually monitor at least 5% of their authorized retail stores through ''routine monitoring'' per 7 CFR 246.12(j)(2). This is done with a computerized random selection process and WIC representatives who visit the randomly selected stores. Each store is reviewed to determine whether it is maintaining the minimum inventory of WIC items priced at, or below, competitive price levels and if the WIC allowable items are fresh or stale dated. The store personnel are asked a series of questions to ensure they are following the program rules and regulations. If a store passes one monitoring review during a monitoring investigation, the investigation is closed and the store is considered to be in compliance. Following each review, a store is sent written notification of the results of each review, and provided training after failing two monitoring reviews. A store must fail three monitoring reviews during a monitoring investigation before a store will be disqualified. The information about routine reviews and store notification can be found at § 1105.6(d).
Violations as a result of § 1107.1a(d)(6) and (7) could be reported by a WIC customer leading to a store inspected by WIC program staff. One incidence would warrant a store's disqualification.
Violation of § 1107.1a(d)(8) would warrant a 1-year immediate disqualification of the store.
According to 7 CFR 246.12(j)(4), each State WIC program is required to monitor at least 5% of the WIC authorized stores through compliance investigations. Violation of § 1107.1a(d)(9)—(12) would be discovered during a compliance investigation, which is not closed until a store passes two consecutive compliance buys. Following each compliance buy, a store is given written notification of the results of each compliance buy, and required to receive mandatory cashier training if they fail two compliance buys. Under § 1105.6(b)(8) (relating to monitoring of WIC authorized stores), the Department may withhold notification of compliance buy results, and may withhold providing training or conducting further compliance investigations, when fraudulent activity by the WIC authorized store is indicated during a compliance investigation or by local agency or participant complaint. A store may be disqualified if it fail at least three compliance buys through the course of a compliance investigation. The information about compliance investigations and store notification can be found at § 1105.6(b).
Violation of § 1107.1a(d)(13) occurs when a store fails to reimburse the Department for overpayments, overcharges or other improper charges. Stores are given 20 days to reimburse the Department following written notification. If payment is not received, the store is given an additional 10 days through written notification. If payment is still not received, a store is sent a disqualification letter that gives it an additional 30 days to send payment. If the store still does not provide payment, the store is disqualified.
If there was a violation of § 1107.1a(d)(14) that can be proven, the store would be immediately disqualified for 1 year.
Under 7 CFR 246.12(h)(7)(i), State WIC programs are required to provide annual training to each WIC authorized retail store. This training is meant to keep stores notified of any changes in Federal or State regulations, and ensure stores maintain the knowledge to transact WIC checks properly. A store must attend an annual training session by the end of each Federal Fiscal Year (FY) or the store will be disqualified for noncompliance with WIC regulations. If a store misses its annual training session, it is given an opportunity to attend alternative training sessions before being disqualified.
A store may apply for authorization following a 1-year period of disqualification. If a store is in the program for a period of 3 consecutive years, it would be required to be reauthorized. The information regarding what stores may do after a 1-year disqualification can be found in § 1107.1a(l). The information about reauthorizations can be found in § 1103.1, referring to authorizations and reauthorizations.
Section 1105.1. Training.
The Department did not receive comments on this section.
Section 1105.2. Price adjustment.
The Department did not receive comments on this section.
Section 1105.3. Terms and conditions of participation.
The Department did not receive comments on this section.
Section 1105.5. Changes in availability or location of WIC authorized stores.
The Department did not receive comments on this section.
Section 1105.6. Monitoring of WIC authorized stores.
The Department did not receive comments on this section.
Section 1107.1a. Disqualifications.
The Department did not receive comments on this section.
Section 1107.2. Civil money penalties.
The Department did not receive comments on this section.
Section 1113.1. Right to administrative appeal.
The Department did not receive comments on this section.
B. Fiscal Impact
Fiscal Impact on the Department
The WIC Program is 100% Federally funded. No State dollars are involved in the operation of the WIC Program. The regulatory change to § 1105.3, allowing a WIC check to be used at any authorized store, causes the WIC Program to incur a one-time equipment purchase fee.
Pennsylvania is one of the few states whose regulations provide for store specific WIC checks. The customary practice in states that are nonstore specific is to require their banking contractor to capture the authorized store number from the face of each check as it is processed through the bank. This service would have added approximately $.02 to the cost of each check processed. Pennsylvania processes approximately 8 million WIC checks annually, which would result in an estimated direct cost increase of approximately $160,000 annually if this method were implemented. Additional costs to the Department under this method would include the issuance and maintenance of WIC authorization stamps to approximately 1,500 authorized stores. The anticipated initial cost would be $2,800 and ongoing replacement and new applicant stamp cost of approximately $300 annually.
Pennsylvania chose an alternate method to this check identification system, which is less costly and less labor intensive. The alternate method uses direct data transfer from each WIC authorized store to the WIC Program. This is accomplished with the use of electronic cash registers, Magnetic Ink Character Recognition (mini-MICR) readers, a secure web site, and touchtone telephones. Each WIC authorized store is required to transfer check redemption data to the WIC Program, prior to depositing its redeemed WIC checks. The data is then combined electronically with each WIC check number, before the bank will redeem the check. This process will incur an initial cost of $93,823 for the cost of the mini-MICR readers that will be supplied to stores that have the appropriate communications equipment. There will be no additional banking fees incurred. Since the Department was required by Federal law to implement these changes no later than July 1, 2006, before regulatory revisions could be completed, some of these costs have already been absorbed by the WIC Program.
Although costs to the Department initially increased, the long-term costs are greatly reduced. Additionally, savings in efficiencies at the local agency level will mitigate these initial cost increases. WIC checks previously identified the authorized store at which they were to be redeemed. However, when the store did not have the products the participant wanted or ceased operating, participants had to go back to the clinics to have the WIC checks reissued to another store. This created additional workload at the clinics, which is eased with these changes. Unfortunately, the actual cost of this additional workload cannot be quantified for accurate comparison to expected increases in costs.
Other aspects of changes in these regulations may cause some additional costs to the Department. The initial and annual determination of whether a store is, or is expected to, derive more than 50% of its annual revenue from the sale of food items from WIC sales and the establishment and maintenance of the store peer group system will require additional staff time. However, it is anticipated this task can be absorbed by the existing staff.
In addition, the list of authorized infant formula manufacturers, wholesalers, distributors or retailers required to be provided to WIC authorized stores will include approximately 11,000—12,000 entities. The Department has worked with USDA and determined that such a list can be provided or made available to WIC authorized stores in an electronic format, thereby mitigating the cost of production of an 11,000—12,000 entry list to approximately 1,400 WIC authorized stores annually.
Any cost increases as a result of these changes mandated by Federal law will be covered by the Federal funding provided to the WIC Program. Additional costs saving may also be realized from the cost containment measures in these regulations as required by Federal law.
Fiscal Impact on the Regulated Community
The Department does not anticipate any increased costs for the regulated community as a result of these regulations.
C. Paperwork Requirements
Paperwork Requirements for the Department
The Department's paperwork will increase in obtaining, preparing and updating the list of authorized infant formula manufacturers, wholesalers, distributors and retailers. The Department's paperwork requirements will also increase in the evaluation and documentation of the review of each store's actual or anticipated WIC sales to determine if any store is deriving more than 50% of its annual revenue from the sale of food items from WIC sales and in establishing and maintaining the store peer group system and the applicable competitive and maximum allowable prices.
Paperwork Requirements for the Regulated Community
The amendments do not increase paperwork for WIC Program participants. The WIC authorized stores are required to submit electronic data regarding the redemption of WIC checks prior to deposit. Although this task will increase the time necessary for WIC authorized stores to prepare WIC checks for deposit, it will be somewhat offset by the fact that cashiers will no longer need to verify that the WIC check being presented for payment is payable to the store.
D. Statutory Authority
The WIC Program was authorized through an amendment to the Federal Child Nutrition Act of 1966 (42 U.S.C.A. § 1786). Congress authorized the USDA-FNS to contract with and make funds available to states to administer the WIC Program. In this Commonwealth, the WIC Program receives 100% of its funding from the USDA-FNS. Recent amendments to the Federal WIC statutes and appropriations necessitate these regulatory revisions. See Child Nutrition and WIC Reauthorization Act, Pub. L. No. 108-265, § 203(e)(10), 118 Stat. 729 at 776—779 (2004) (codified at 42 U.S.C. § 1786(h)(11)); Consolidated Appropriations Act, 2005, Pub. L. No. 108-447, 118 Stat. 2809, 2833 and 2850 § 780; and, Agricultural, Rural Development, Food and Drug Administration, and Related Agencies Appropriations Act, 2006, Pub. L. No. 109-97, 119 Stat. 2120, 2144 and 2163 § 787.
There are no state statutes governing the operation or administration of the WIC Program. The Women's, Infants' and Children's Nutrition Improvement Act (62 P. S. §§ 2951—2955) authorizes additional state funding for the expansion of the WIC Program. The Commonwealth, however, has not provided funding for the expansion of the program since State FY 1996.
The State regulations governing the WIC Program were published at 29 Pa.B. 3841 (July 24, 1999), following 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). The Commonwealth Court held that the Department was required to promulgate regulations governing the selection and management of grocery stores to participate in the WIC Program. The State regulations added 28 Pa. Code Part VIII (relating to supplemental nutrition program for women, infants and children (WIC program)). The regulations also deleted 28 Pa. Code §§ 8.41—8.74, the Department's then existing regulations pertaining to WIC Program administrative appeals.
The final-form regulations are published under section 2102(g) of The Administrative Code of 1929 (code) (71 P. S. § 532(g)), which provides the Department general power to promulgate regulations to carry out its duties. Section 2102(a) of the code gives the Department the authority and duty to protect the health of the people of this Commonwealth. See 71 P. S. § 532(a).
E. Effective Date/Sunshine Date
The regulations will become effective upon publication in the Pennsylvania Bulletin as final-form rulemaking. The regulations will be monitored continuously and will be updated as required by changes in Federal laws governing the WIC Program. Therefore, no sunset date has been set.
F. Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. §§ 745.1—745.15), the Department submitted a copy of a notice of proposed rulemaking, published at 38 Pa.B. 4767, to IRRC and to the Chairpersons of the House Health and Human Services Committee and the Senate Public Health and Welfare Committee (Committee) on August 15, 2008. The Department received no comments during the formal comment period. In compliance with the Regulatory Review Act, the Department also provided IRRC and the Committees with copies of all other required documentation.
In compliance with section 5.1(a) of the Regulatory Review Act, the Department submitted a copy of the final-form rulemaking to IRRC and the Committees on June 4, 2009. In addition, the Department provided IRRC and the Committees with information pertaining to commentators and a copy of 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 preparing this final-form rulemaking the Department has considered all comments received from IRRC, the Committees and the public.
This final-form rulemaking was deemed approved by the Committees on July 22, 2009. IRRC met on July 23, 2009, and approved the regulation in accordance with section 5.1(e) of the Regulatory Review Act. The final-form rulemaking was delivered to the Office of Attorney General on August 6, 2009. The Office of Attorney General approved the final-form rulemaking on September 1, 2009.
G. Contact Person
Questions regarding these regulations may be submitted to Greg Landis, Director, WIC Program, 2150 Herr Street, 1st Floor, Harrisburg, PA 17103, (717) 783-1289. Persons with a disability may submit questions in alternative format such as audio tape, Braille or by using V/TT (717) 783-6514 or the Pennsylvania AT&T Relay Service at (800) 654-5984 (TT). Persons who require an alternative format of this document may contact Greg Landis at the previous address or telephone numbers so that necessary arrangements may be made.
H. Findings
The Department finds that:
(1) Public notice of intention to adopt the regulations adopted by this order has been given under sections 201 and 202 of the act of July 31, 1968 (P. L. 769, No. 240) (45 P. S. §§ 1201 and 1202), and the regulations thereunder, 1 Pa. Code §§ 7.1 and 7.2 (relating to notice of proposed rulemaking required; and adoption of regulations).
(2) A public comment period was provided as required by law and no public comments were received.
(3) The adoption of regulations in the manner provided by this order is necessary and appropriate for the administration of the authorizing statute.
I. Order
The Department, acting under the authorizing statute, orders that:
(1) The regulations of the Department, at 28 Pa. Code Chapters 1101, 1103, 1105, 1107 and 1113 are amended by amending §§ 1101.2, 1103.1, 1103.4, 1103.8, 1105.1—1105.3, 1105.5. 1105.6, 1107a.1, 1107.2 and 1113.1 as set forth in Annex A.
(2) The Secretary of Health shall submit this order and Annex A to the Office of General Counsel and the Office of Attorney General for approval as required by law.
(3) The Secretary of Health shall submit this Order, Annex A and a Regulatory Analysis Form to IRRC and the Committees for their review and action as required by law.
(4) The Secretary of Health shall certify this order and Annex A and deposit them with the Legislative Reference Bureau as required by law.
(5) This order shall take effect immediately upon publication in the Pennsylvania Bulletin.
(Editor's Notice: For the text of the order of the Independent Regulatory Review Commission relating to this document, see 39 Pa.B. 4832 (August 8, 2009).
Fiscal Note: Fiscal Note 10-180 remains valid for the final adoption of the subject regulation.
EVERETTE JAMES,
Secretary
Annex A
TITLE 28. HEALTH AND SAFETY
PART VIII. SUPPLEMENTAL NUTRITION PROGRAM FOR WOMEN, INFANTS AND CHILDREN (WIC PROGRAM)
CHAPTER 1101. GENERAL PROVISIONS § 1101.2. Definitions.
The following words and terms, when used in this part, have the following meanings, unless the context clearly indicates otherwise:
Above-50-percent-store—A store that derives more than 50% of its annual food sales revenue from WIC checks, and a new store applicant expected to meet this criterion under guidelines approved by USDA-FNS.
* * * * * Competitive price—The price established by the Department, at or below which a store shall maintain the required minimum inventory.
* * * * * Food items—Items sold for human consumption that are eligible for purchase under the Food Stamp Program.
* * * * * Food sales—
(i) Sales of all Food Stamp Program eligible foods intended for home preparation and consumption, including meat, fish, and poultry; bread and cereal products; dairy products; fruits and vegetables.
(ii) Food items such as condiments and spices, coffee, tea, cocoa and carbonated and noncarbonated drinks may be included in food sales when offered for sale along with foods in the categories identified in this definition.
(iii) The term does not include the sale of any item that cannot be purchased with food stamp benefits, such as hot foods or food that will be eaten in the store.
Food Stamp Program—The government benefits program operated under the authority of the Food Stamp Act of 1964 (7 U.S.C. Chapter 51) and 55 Pa. Code Part II, Subpart L (relating to Food Stamp Program), and administered by the USDA-FNS and the Department of Public Welfare.
Full line grocery store—A store that:
(1) Offers for sale, in addition to WIC authorized foods, food items from each of the following four food categories on a continuous basis:
(i) Meat, poultry or fish.
(ii) Bread or cereal.
(iii) Vegetables or fruits.
(iv) Dairy.
(2) Has available for sale at all times of operation and displays in a public area of the store, a minimum of three different varieties of food items in each of the four above listed food categories.
* * * * * Overpayment—Payment to a WIC authorized store of a WIC check redeemed by the store in an amount in excess of the amount to which the store was entitled based upon the maximum allowable price applicable to the store's peer group for each allowable food authorized for purchase on the WIC check.
* * * * * Peer group—The classification of an authorized store under the store peer group system, as determined by the criteria selected by the Department, including size of a store sales floor, number of cash registers in the store, number of stores owned, and county where the store is located.
* * * * * Store peer group system—A classification of authorized stores into groups based on common characteristics or criteria including size of a store sales floor, number of cash registers in the store, number of stores owned, and a measure of geography, such as metropolitan or other statistical areas that form distinct labor and product markets that affect food prices, for the purposes of applying appropriate competitive pricing criteria to stores at authorization and reauthorization and limiting payment for foods to competitive levels.
* * * * *
CHAPTER 1103. AUTHORIZATION OF STORES § 1103.1. Authorization and reauthorization process and requirements.
(a) Duration of authorization or reauthorization. To serve as a WIC authorized store, a store shall be authorized in accordance with subsection (b) or reauthorized in accordance with subsection (c). A store's authorization or reauthorization shall remain in effect until the Department acts on the store's application for reauthorization when the next periodic review is conducted in the trade area in which the store is located, unless terminated earlier in accordance with subsection (d). At least once every 3 years, the Department will conduct a periodic review in each trade area. Failure to submit an application for reauthorization as prescribed under subsection (c) shall result in expiration of the store's authorization or reauthorization. The Department will provide 30 days written notice to the store prior to expiration of authorization or reauthorization for any store failing to submit an application. A store that has received a letter of authorization dated less than 60 days prior to the date of the notice of the periodic review in the store's trade area shall be exempt from the periodic review.
(b) Authorization process.
(1) The store's representative shall contact the local agency responsible for the trade area where the store is located to request an application for authorization. The local agency shall send WIC Program information and an application for authorization to the store. The store shall complete the application for authorization and return it to the local agency.
(2) The Department will refuse to accept an application from a store if the store has been provided notice of disqualification or is disqualified from the WIC Program, if the Department determines that the store relocated or effected a change of ownership to avoid a disqualification, or if the store has been denied authorization or reauthorization and is not eligible to apply for authorization.
(3) The Department will not accept an application for authorization less than 90 days prior to the scheduled start date of the periodic review in that trade area unless the Department finds that there would be inadequate participant access, as set forth in § 1103.7 (relating to inadequate participant access), if it does not consider the application.
(4) If the store's application for authorization is accepted, the local agency shall schedule, as expeditiously as possible, an announced onsite review of the store to determine if the store meets the selection criteria in § 1103.4 (relating to selection criteria for authorization and reauthorization). The local agency shall notify the store in advance of the approximate date of the review.
(5) The Department may request from the store any information necessary for the Department to determine whether the store qualifies as an above-50-percent-store. This information may include official State and Federal Income Tax filings, official State Sales Tax records, inventory purchase records, sales records or a self-declaration from the applicant.
(6) The local agency shall conduct the onsite review and forward the results to the Department for a decision on the store's application.
(7) The Department will deny the application if the selection criteria in § 1103.4 are not satisfied, unless the Department grants probationary authorization under § 1103.2 (relating to probationary authorization). The Department will notify the store in writing whether the store's application for authorization is granted or denied. If the Department denies the application for authorization, the store shall be eligible to reapply for authorization 6 months after the effective date of the denial.
(c) Reauthorization process.
(1) The Department will include an application for reauthorization with the notice of periodic review it sends to the store. The local agency will collect the application for reauthorization at the time of the announced onsite review of the store to determine if the store meets the selection criteria in § 1103.4. The local agency shall notify the store in advance of the approximate date of the review.
(2) The Department may request from the store any information necessary for the Department to determine whether the store qualifies as an above-50-percent-store. This information may include official State and Federal Income Tax filings, Official State Sales Tax records, inventory purchase records, sales records or a self-declaration from the applicant.
(3) The local agency shall conduct the onsite review and forward the results to the Department for a decision on the store's application.
(4) The Department will deny the application without advance warning if the selection criteria in § 1103.4 are not satisfied, unless the store requests and the Department grants temporary authorization in accordance with § 1103.3 (relating to temporary authorization) or the Department grants probationary authorization in accordance with § 1103.2. The Department will notify the store in writing whether the store's application for reauthorization is granted or denied. If the Department denies the application for reauthorization, the store shall be eligible to apply for authorization 6 months after the effective date of the denial. If the Department grants and later rescinds temporary authorization, the store shall be eligible to apply for authorization 1 year from the date of the first onsite review for reauthorization.
(d) Termination of authorization or reauthorization. The Department will terminate a store's authorization or reauthorization if:
(1) The store has been disqualified.
(2) The store supplied false information in the application for authorization or reauthorization.
(3) The store is not serving at least 25 participants 8 months following authorization.
(4) Ownership of the store changes
(5) The store relocates in excess of 1 mile of its current location and to a geographical area assigned to another local agency.
(6) The store closes for more than 3 business days and does not notify the Department.
(7) The Department does not receive from the store, within 20 calendar days of the store's receipt of a written notice from the Department, the information the Department has requested necessary for it to determine whether the store qualifies as an above-50-percent-store.
(8) After authorization of the store, the Department determines if the store qualifies as an above-50-percent-Store. This paragraph does not apply to stores solely owned or operated by nonprofit entities.
§ 1103.4. Selection criteria for authorization and reauthorization.
The Department will use the following selection criteria to identify stores that meet the operational criteria to serve as a WIC authorized store:
(1) The store shall be located within this Commonwealth.
(2) A store seeking reauthorization shall serve at least 25 participants per month. The Department will deny reauthorization if the store is not serving 25 participants per month in the most recent month for which the Department has participant data at the time the onsite review for reauthorization is conducted.
(3) The store shall have allowable foods properly stored and refrigerated.
(4) The store may not have stale-dated allowable foods on its sales floor.
(5) The store shall at all times have available on the premises the minimum inventory of allowable foods as established by the Department under § 1103.5 (relating to minimum inventory) at shelf prices that are equal to or less than the competitive prices applicable to the store's peer group for those foods. On a quarterly basis, the Department will publish in the Pennsylvania Bulletin and mail to all WIC authorized stores, the competitive prices and maximum allowable prices applicable to all peer groups for allowable foods for the next quarter.
(6) The store shall be open for business and able to serve participants at least 8 hours per day, 6 days per week.
(7) The store shall be sanitary. There may not be unremoved rubbish, vermin, or general lack of cleanliness.
(8) The store shall operate as a full line grocery store in a permanent fixed location where participants may purchase allowable foods with their WIC checks.
(9) If the store has been denied authorization or reauthorization within the past 12 months, the store must be eligible to apply for authorization under § 1103.1(b) or (c) or § 1103.3(b)(2) (relating to authorization and reauthorization process and requirements; and temporary authorization).
(10) The store may not be currently disqualified from participation in the Food Stamp Program or have been assessed a civil money penalty in lieu of a disqualification from the Food Stamp Program that, had it been imposed, would not yet have expired.
(11) The store may not be currently disqualified from the WIC Program.
(12) The store shall have implemented all required corrective actions resulting from monitoring by the Department, including reimbursement of any overcharges or overpayments, and shall be in compliance with the applicable Federal and State regulations.
(13) None of the store's current owners, officers, or managers shall have been convicted of or had a civil judgment entered against them for conduct demonstrating a lack of business integrity.
(14) The store will not qualify or will not be expected to qualify as an above-50-percent-store. This paragraph does not apply to stores solely owned or operated by nonprofit entities.
(15) The store shall meet the minimum information technology requirements set by the Department. The Department will publish in the Pennsylvania Bulletin and mail to all WIC authorized stores, by September 15 of each year, the minimum technology requirements applicable for the following calendar year. This paragraph does not apply to stores authorized prior to September 12, 2009, and maintaining an uninterrupted authorized status.
§ 1103.8. Store peer group system.
(a) The Department will establish a store peer group system, including distinct competitive pricing criteria and allowable reimbursement levels for each peer group.
(b) The Department will create peer groups based upon at least two criteria selected by the Department. These criteria may include the size of a store sales floor, number of cash registers in the store, number of stores owned, and a measure of geography, such as metropolitan or other statistical areas that form distinct labor and product markets. The Department will annually publish the peer group selection criteria in the Pennsylvania Bulletin.
(c) The Department will place a store seeking authorization into an appropriate peer group based upon information gathered from the store's application as completed by the store and returned to the local agency in accordance with § 1103.1(b)(1) (relating to authorization and reauthorization process and requirements). The Department will notify a store of its peer group classification prior to conducting an onsite review under § 1103.1(b)(5). A WIC authorized store seeking reauthorization shall remain in the peer group previously selected for the store unless otherwise notified by the Department.
(d) A WIC authorized store shall adhere to the competitive prices and maximum allowable prices applicable to the store's peer group.
(e) A WIC authorized store shall inform the Department of any store changes applicable to the peer group selection criteria in effect.
CHAPTER 1105. REQUIREMENTS OF WIC AUTHORIZED STORES § 1105.1. Training.
(a) Initial training. Following authorization, the local agency shall provide initial training for the personnel the WIC authorized store designates. The training shall be mandatory and shall occur within 30 days after the date of authorization. A store receiving authorization may not accept WIC checks prior to having its designated personnel attend the initial mandatory training.
(b) Annual training. The Department will provide for WIC authorized stores annual training which is designed to prevent WIC Program errors and abuses and to improve WIC Program services. The following apply to annual training:
(1) A WIC authorized store shall ensure that at least one representative from the store who is responsible for training store personnel on the WIC Program shall attend.
(2) Attendance is mandatory.
(3) The Department will offer each WIC authorized store two opportunities to attend.
(4) The Department will ensure that annual training is offered to a WIC authorized store either within the county in which it is located or in an adjoining county within the appropriate local agency's jurisdiction.
(5) Failure to have at least one representative attend training shall result in the Department imposing sanctions against the WIC authorized store under § 1107. 1a(d)(15) (relating to disqualifications).
(c) Corrective training. The Department will provide corrective training as set forth in §§ 1103.2 and 1105.6 (relating to probationary, authorization; and monitoring of WIC authorized stores). Attendance is mandatory.
§ 1105.2. Price adjustment.
(a) Determination of overpayment. In each calendar quarter, the Department will compare the maximum amount for which a WIC authorized store could have redeemed a WIC check, based upon the maximum allowable prices applicable to the store's peer group for foods authorized for purchase on the check, against the actual amount for which the WIC check was redeemed, to determine whether there was an overpayment.
(b) Pursuit of reimbursement. The Department will seek reimbursements from a WIC authorized store when the price comparison reveals overpayments to the store in excess of $10 in a calendar quarter.
(c) Reimbursement of overpayments. A WIC authorized store shall reimburse the Department for overpayments within 20-calendar days of the date on the Department's notice of the overpayment, unless the WIC authorized store disputes the determination of overpayment.
(d) Dispute of overpayments. A WIC authorized store that disputes a determination of overpayment shall submit the basis for its dispute in writing to the Department, postmarked within 15-calendar days of the date on the Department's notice. Reimbursement the Department determines is owed shall be due within 15-calendar days of the mailing date of the Department's notification of its resolution of the dispute. The Department's resolution of a dispute regarding overpayments is not an adverse action that may be appealed.
(e) Sanctions. The Department will impose a sanction against a WIC authorized store under § 1107.1a(d)(11) (relating to disqualifications) if the store fails to reimburse the Department for an overpayment within the time required under subsections (c) and (d).
§ 1105.3. Terms and conditions of participation.
(a) General terms and conditions. A WIC authorized store shall adhere to this subsection. Failure to do so shall result in the imposition of sanctions under § 1107.1 (relating to imposition of sanctions). A WIC authorized store shall:
(1) Adhere to all applicable statutes and State and Federal regulations, regulating the WIC Program, including the nondiscrimination provisions of 7 CFR Parts 15, 15a, 15b and 246, and this part.
(2) Inform the public of its participation in the WIC Program by displaying at least one WIC decal supplied by the Department in a place conspicuously visible to the general public.
(3) Be accountable for the actions of owners, officers, managers, agents and employees in the handling of WIC checks, the selling of allowable foods, and the performance of other conduct related to the WIC Program.
(4) Comply with the selection criteria in § 1103.4 (relating to selection criteria for authorization and reauthorization) throughout the authorization period.
(5) Provide orientation and training to employees regarding applicable regulations governing the WIC Program.
(6) Maintain a copy of the current WIC food list at each check-out aisle.
(7) Send at least one representative who is responsible for training store personnel on the WIC Program to WIC Program training annually, or more often if required by the Department under § 1105.1(c) (relating to training).
(8) Immediately notify the Department when store ownership changes, when store operations cease on a permanent or temporary basis, or when any other circumstance impacting service to participants occurs.
(9) Allow Federal, State, Department and local agency representatives who are involved in monitoring the store's compliance with statutes and regulations governing the WIC Program, to visit the store to observe its procedures for accepting and handling WIC checks and to conduct announced or unannounced onsite reviews to determine compliance with applicable Federal and State regulations.
(10) Provide Federal, State, Department and local agency representatives who are involved in monitoring the store's compliance with statutes and regulations governing the WIC Program, access to all WIC checks accepted by the store and on its premises at the time of an onsite review.
(11) Provide Federal, State, Department and local agency representatives who are involved in monitoring the store's compliance with statutes and regulations governing the WIC Program, access, which includes providing copies if requested by the Department, to purchase records used for Federal tax reporting purposes and other records as requested to determine compliance with WIC Program requirements.
(12) Agree that authorization does not constitute a license or a property interest, that the store must reapply for authorization in accordance with § 1103.1(c) (relating to authorization and reauthorization process and requirements), and that neither the Department nor the WIC authorized store has an obligation to renew the store's authorization to participate in the WIC Program.
(13) Agree that the store's authorization to participate in the WIC Program shall become void when ownership of the store changes.
(14) Display the current shelf price of each allowable food either on the allowable food, on the shelf immediately above or below the allowable food, or prominently on an allowable food price list easily located by participants and clearly visible to them.
(15) Not transfer or assign its WIC authorization or reauthorization to another person or entity.
(16) Maintain purchase records and records used for Federal tax reporting purposes for allowable foods for a minimum of 2 years.
(17) Purchase infant formula for resale to WIC participants only from Department authorized infant formula manufacturers, wholesalers, distributors or retailers. Information on where to obtain the list will be published by the Department in the Pennsylvania Bulletin simultaneously with the initial publishing of this subsection.
(18) Provide the Department, within 20 calendar days of the store's receipt of a written notice from the Department requesting the additional information, any information the Department has requested necessary to determine whether the store qualifies as an above-50-percent-store. This paragraph does not apply to stores solely owned or operated by nonprofit entities.
(b) Terms and conditions of participation with regard to participants. A WIC authorized store shall serve participants and authorized representatives as set forth in this subsection. The Department will impose sanctions against a WIC authorized store that fails to do so, as set forth in § 1107.1. A WIC authorized store shall:
(1) Provide allowable foods to a participant or authorized representative only as authorized on the WIC food list as specified on the WIC check.
(2) Not encourage or discourage a participant or authorized representative from purchasing an allowable food specified on the WIC check.
(3) Provide an allowable food to a participant or authorized representative at or below the current price the store charges other customers, and at or below the maximum allowable price applicable to the store's peer group.
(4) Not seek restitution or payment from a participant or authorized representative for a WIC check not reimbursed by the Department, or contact a participant or authorized representative concerning a WIC transaction that occurs in the store.
(5) Not seek restitution or payment from a participant or authorized representative for an allowable food authorized for purchase on the WIC check tendered by the participant or authorized representative.
(6) Not request the personal address, telephone number or other personal identification of a participant or authorized representative.
(7) Offer each participant or authorized representative the same courtesies offered other customers, and not distinguish or identify a participant or authorized representative from other customers, if no other terms and conditions of participation are violated in doing so.
(8) Provide services to each participant or authorized representative without regard to race, color, age, sex, religion, mationality origin or disability.
(9) Provide the same promotional incentive for a purchase made with a WIC check as given for a cash purchase.
(10) Accept cents-off coupons, a store discount card or other discounts from a participant or authorized representative for an allowable food, and deduct the savings in calculating the total purchase price entered into the "Pay Exactly'' amount on WIC checks.
(11) Accept ''buy one get one free'' coupons and manufacturers' promotional free product offers from a participant or authorized representative.
(12) Provide a promotional incentive for use of a WIC check only if the same incentive is offered for a cash purchase.
(c) Terms and conditions of participation with regard to WIC check processing and redemption. A WIC authorized store shall adhere to the requirements of this subsection with regard to WIC check processing and redemption. The Department will impose sanctions against a WIC authorized store that fails to do so, as set forth in § 1107.1. A WIC authorized store shall:
(1) Treat the acceptance of a WIC check as a financial transaction between the WIC authorized store and the Department, not the participant.
(2) Accept a WIC check only if the participant or authorized representative presents the WIC check on or between the ''First Day to Use'' and the ''Last Day to Use'' designations on the WIC check.
(3) Accept a WIC check only if a valid WIC identification card is presented at the time of the WIC transaction.
(4) Accept a WIC check only if the signature of the participant or authorized representative is obtained on the WIC check at the time of the WIC transaction and the family identification number on the WIC check matches the family identification number on the identification card.
(5) Accept a WIC check only if there is no visible alteration on the WIC check.
(6) Charge the WIC Program only for the types and quantities of allowable foods specified on the WIC check and selected for purchase by the participant or authorized representative.
(7) Record in ink, on each WIC check immediately after completion of the WIC transaction and prior to the participant or authorized representative signing the WIC check, the actual purchase amount of the transaction net of any cents-off coupons or other discounts.
(8) Properly correct an error made in recording the ''Pay Exactly'' amount of a WIC check by drawing a single line through the incorrect amount and writing the correct amount above or below the error and having the participant or authorized representative initial next to the corrected amount. No other corrections are permissible.
(9) Not alter any information on the WIC check as presented by the participant or authorized representative.
(10) Not provide a substitute item, raincheck or cash reimbursement for an allowable food that is unavailable.
(11) Not provide cash or credit for a WIC check.
(12) Not provide change for a coupon tendered during the WIC transaction.
(13) Not provide an exchange to replace an allowable food returned by a participant or authorized representative unless the exchange is to replace an identical product that was found to be damaged or otherwise unusable.
(14) Not refund money for an allowable food purchased in a WIC transaction that is returned by a participant or authorized representative.
(15) Not accept a WIC check as payment for an item other than an allowable food specified on the WIC check.
(16) Not charge the WIC Program for an allowable food not received by the participant or authorized representative or for an allowable food in excess of the quantity prescribed on the WIC check.
(17) Not charge the WIC Program for the sale of an amount of an allowable food which exceeds the store's documented inventory of that food item covering the period of time under review and in which the sale was made.
(18) Prior to depositing WIC checks, transmit records of WIC check numbers from WIC checks accepted by the store to the Department through transmission mechanisms made available by the Department.
(19) Deposit a WIC check accepted by it directly to its bank account no later than 45 days after the ''First Day to Use'' date on the WIC check.
(20) Not receive, transact, redeem or otherwise dispose of a WIC check in violation of check redemption procedures set forth in this section.
(21) Not use a WIC check for the purchase of any item other than an allowable food or for the payment of any debt.
(22) Not collect Sales Tax in connection with a WIC transaction.
(d) Denial of. When the Department determines, prior to payment of a check submitted for redemption, that the store has committed a violation of this section that affects the payment to the store, the Department may deny payment. If payment already has been made, the Department may establish a claim for reimbursement by sending the store a written notice of the overcharge or other improper charge. The store may dispute the Department's claim and shall submit the basis for its dispute in writing within 15-calendar days of the date of the Department's written notice. The Department will notify the store of the resolution of the claim dispute. The Department's resolution of a claim dispute is not an adverse action that may be appealed.
§ 1105.5. Changes in availability or location of WIC authorized stores.
(a) Notification of store closing. A WIC authorized store shall notify the Department at least 15 days prior to a temporary or permanent closing of the store, and provide the reason for closing and the expected duration of a temporary closing, if it has at least 15 days prior knowledge. Otherwise, it shall provide this information to the Department immediately after it acquires the information.
(b) Temporary store closing. The Department may permit a WIC authorized store to temporarily close for reasons such as a natural disaster, death in immediate family or personal illness, without imposing a sanction against the store. In making a determination to permit a temporary closure, as well as the length of time of the closure, the Department will consider circumstances such as the nature of the disaster, number of WIC authorized stores affected by the disaster, nature and expected duration of illness, length of closing anticipated by the WIC authorized store, number of and distance to other WIC authorized stores, number of participants served by the store, or any other information that the Department may determine to be relevant.
(c) Store closing for remodeling.
(1) A WIC authorized store that closes for less than 15 days for remodeling shall continue as a WIC authorized store if it notifies the Department at least 15-calendar days prior to the day the store closes for remodeling.
(2) A WIC authorized store that closes in excess of 15 store operation days for remodeling, shall automatically lose its status as a WIC authorized store and shall apply for and secure authorization before it may again serve as a WIC authorized store.
(d) Store relocations.
(1) A WIC authorized store that relocates 1 mile or less from its current location or within the same geographical area assigned to the local agency, and reopens within 15-calendar days at its new location, shall provide the Department with written notification of its new address. The store will continue as a WIC authorized store if it notifies the Department at least 15-calendar days prior to the day the store closes for relocating.
(2) A WIC authorized store that relocates in excess of 1 mile of its current location and to a geographical area assigned to another local agency shall automatically lose its status as a WIC authorized store and shall apply for authorization at its new location to again serve as a WIC authorized store.
(3) A WIC authorized store that closes in excess of 3 store operation days for relocating shall notify the Department before doing so, or shall automatically lose its status as a WIC authorized store and shall apply for authorization to again serve as a WIC authorized store.
§ 1105.6. Monitoring of WIC authorized stores.
(a) Purpose and types of monitoring of WIC authorized stores.
(1) 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 compliance investigations, inventory audits, routine reviews and WIC transaction reviews. The monitoring process, to determine compliance with applicable Federal and State regulations, operates independently of the authorization process and may overlap more than one authorization period.
(2) The Department will conduct an annual analysis of a WIC authorized store's sales data to determine whether the store qualifies as an above-50-percent-store, except that stores solely owned or operated by nonprofit entities shall not be subject to this annual analysis.
* * * * * (h) Annual determination of WIC sales percentage. The Department may request from a store information necessary for the Department to determine whether the store qualifies as an above-50-percent store. This information may include a request for State or Federal Income Tax returns, State Sales Tax records, Department of Revenue Form PA-3 filings, and sales records. This paragraph does not apply to stores owned by nonprofit entities.
CHAPTER 1107. SANCTIONS § 1107.1a. Disqualifications.
* * * * * (d) One-year disqualification. The Department will disqualify a WIC authorized store for 1 year for any of the following violations:
(1) Two or more incidences of providing a food item other than an allowable food in exchange for WIC checks.
(2) Two or more incidences of providing an allowable food in excess of the amount authorized for purchase on the WIC check.
(3) Having a stale-dated allowable food on the sales floor.
(4) Failing to maintain on the premises, at all times minimum inventory requirements of an allowable food at or below the current competitive price applicable to the store's peer group for that food.
(5) Two or more incidences of failing to request a WIC identification card prior to accepting a WIC check.
(6) Failing to maintain a clean and sanitary store.
(7) Failing to properly store or refrigerate an allowable food.
(8) Closure of the store by a city, local or county health department.
(9) Charging or demanding that a participant or authorized representative pay for an allowable food with money or with another WIC check for purchases made with a WIC check.
(10) Two or more incidences of securing the signature of the participant or authorized representative prior to completing the ''Pay Exactly'' box on the WIC check.
(11) Two or more incidences of charging the WIC Program sales tax.
(12) Giving monetary change to the person who tenders a WIC check.
(13) Failing to reimburse the Department for overpayments, overcharges or other improper charges within the specified time frame.
(14) 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.
(15) Failing to have at least one representative of the store attend required training.
(16) Providing false information on the application for authorization or reauthorization.
(e) Second mandatory sanction. If a WIC authorized store, which previously has been assessed a sanction for any of the violations in subsections (b)—(d), receives another sanction for any of these violations, the Department will double the second sanction. The Department will double civil money penalties up to the limits allowed under § 1107.2(c) (relating to civil money penalties).
* * * * * § 1107.2. Civil money penalties.
(a) Option available in lieu of a disqualification or denial of reauthorization. The Department may offer to a WIC authorized store the option of paying a civil money penalty in lieu of a denial of reauthorization or a disqualification required under § 1107.1 (relating to imposition of sanctions), only if the Department finds inadequate participant access as set forth in § 1103.7 (relating to inadequate participant access). The Department will not provide this option for third or subsequent violations under § 1107.1a(b)—(d) (relating to disqualifications) or for any permanent disqualifications under § 1107.1a(a).
(b) Calculation of civil money penalty.
(1) For a civil money penalty in lieu of a disqualification under § 1107.1a(b), (c) or (d)(1) and (2), the Department will calculate the civil money penalty for each violation identified by multiplying 10% 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. 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.
(2) For a civil money penalty in lieu of disqualification under § 1107.1a(d)(3)—(15), the Department will calculate the civil money penalty for each violation identified 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 a store to which the Department may deny reauthorization and 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) Limitation of penalties. The amount of the civil money penalty will not exceed $10,000 for each violation. If, during the course of a single investigation, the Department determines a store has committed multiple violations, the Department will impose a civil money penalty for each violation. The total civil money penalty for all violations investigated as part of a single investigation will not exceed $40,000.
(d) 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 will be effective when it is signed by the Director of the Division of WIC or the Director's designee.
(e) Payment of the civil money penalty. If a WIC authorized store does not pay, only partially pays, or fails to timely pay a civil money penalty assessed in lieu of disqualification, the Department will disqualify the WIC authorized store for the length of the disqualification authorized for the violation for which the civil money penalty was assessed. If a civil money penalty is assessed for more than one violation, the Department will impose the disqualification for the period authorized for the most serious violation. The Department may permit payment of a civil money penalty by installments.
(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, reimbursement to the Department of overpayments.
CHAPTER 1113. STORE APPEALS § 1113.1. Right to administrative appeal.
(a) A store has the right to appeal an adverse action of the Division of WIC that affects the store's participation in the WIC Program as a WIC authorized store. Adverse actions include:
(1) Termination of authorization or reauthorization in accordance with § 1103.1(d) (relating to authorization and reauthorization process and requirements).
(2) Denial of an application for authorization or reauthorization.
(3) Refusal to accept an application for authorization or reauthorization.
(b) A store may not appeal the following:
(1) The expiration of authorization or reauthorization.
(2) The validity or appropriateness of selection criteria.
(3) The validity or appropriateness of the Department's participant access criteria and the Division of WIC's participant access determination.
(4) The validity or appropriateness of the Department's store peer group system criteria and the criteria used by the Department to identify stores that qualify as an above-50-percent-store or that are comparable to above-50-percent-stores.
(5) Disqualification from the WIC Program as a result of disqualification from the Food Stamp Program.
(6) The resolution of an overpayment dispute under § 1105.2(d) (relating to price adjustment) or the resolution of an overcharge dispute under § 1105.3(d) (relating to terms and conditions of participation).
(c) A denial of authorization under § 1103.1(b)(7) and a disqualification imposed under § 1107.1a(a) (relating to disqualifications) shall be effective on the date of the store's receipt of notice of the adverse action. All other adverse actions shall be effective on the date set forth in the written notice.
[Pa.B. Doc. No. 09-1678. Filed for public inspection September 11, 2009, 9:00 a.m.]
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