PROPOSED RULEMAKING
DEPARTMENT OF HEALTH
[28 PA. CODE CHS. 1101, 1103, 1105, 1107
AND 1113]
WIC Program
[30 Pa.B. 873] A. Introduction
The Department of Health (Department) proposes to amend Chapters 1101, 1103, 1105, 1107 and 1113, to read as set forth in Annex A. Those regulations govern the authorization and management of stores participating in the Special Supplemental Nutrition Program for Women, Infants and Children (WIC Program) and the procedures for administrative appeals of WIC applicants and participants, and local agencies and stores.
B. Purpose of the Proposed Amendments
The majority of the proposed changes to the Department's regulations are necessitated by recent amendments to the Federal regulations governing the WIC Program found in 7 CFR 246. The Federal amendments adopted on March 18, 1999, mandate uniform sanctions for the most serious violations of WIC Program regulations by grocery stores authorized to participate in the WIC Program. The purpose of these changes, as explained in the preamble to the Federal amendments, is to curb vendor related fraud and abuse in the WIC Program and to promote coordination between the WIC Program and the Food Stamp Program in the disqualification of stores which violate either WIC Program or Food Stamp Program rules. In accordance with the mandates of the United States Department of Agriculture, Food and Nutrition Services (USDA-FNS), which provides 100% of the funds for the operation of the WIC Program in this Commonwealth, the Department must implement these mandatory changes no later than May 17, 2000.
The Department has engaged in a thorough review of the existing State regulations under the Governor's Executive Order 1996-1. The Department has held public meetings for the purpose of soliciting comments from those affected by the State regulations. Notices of these public meetings were published at 29 Pa.B. 4695 (September 4, 1999) and 29 Pa.B. 5452 (October 16, 1999), sent to approximately 1,400 grocery stores in this Commonwealth and their trade associations, posted in WIC clinics and sent to other interested coalitions, such as the Pennsylvania Hunger Action Center. In addition to those changes required as a result of the Federal amendments, the Department has proposed revisions to the State regulations as a result of discussions held during those public meetings.
The State regulations are a part of the State Plan of Operations required to be submitted to the USDA-FNS under 7 CFR 246.4 (relating to state plan). Therefore, in addition to the Commonwealth's statutory requirements for amending regulations, the Department must submit any changes to the State regulations to the USDA-FNS for approval following the Commonwealth's proposed rulemaking process and prior to submitting them in final form. 7 CFR 246.4(c).
C. Summary of Amendments.
§ 1101.2 Definitions.
The Department proposes to include the definition of ''premises'' as that area within the building housing the store. The WIC Program has proposed to change the requirements for the location of the minimum inventory that a WIC authorized store shall maintain. Previously, a vendor was required to have available on the sales floor at all times, the minimum inventory requirement of WIC allowable foods in § 1103.5 (relating to minimum inventory). The Department has proposed to change this requirement to permit the store to meet the requirement if the inventory is maintained on the premises, not just on the sales floor. Therefore, if a store does not have the minimum inventory available for sale to a WIC customer on the sales floor, but would easily be able to provide the allowable foods immediately from the stockroom on the premises, the minimum inventory requirements would be satisfied. The Department proposes to substitute the term ''premises'' for ''sales floor'' in certain regulations to ensure that the stock, although not on the sales floor, is immediately and readily accessible to the WIC participants to ensure accessibility to prescribed foods and prevent the loss of supplemental food benefits or inconvenience for the participant. The definition of ''sales floor'' remains in this section to define the areas that WIC Program officials will survey WIC allowable foods for staledating requirements. The reviews will encompass the sales floor and will exclude areas not accessible to the general public.
The Department proposes to redefine the term ''store slot'' so that a store slot is assigned based upon the density of participant population in a county and the actual number of participants in a county. This will make the definition consistent with the proposed change to § 1103.3 (relating to the authorization of store slots) regarding the method of assigning the number of store slots to a particular area. The Department proposes to assign store slots based upon actual WIC participant density per county instead of expected participant population per trade area. The density of the participants per square mile will determine which tier the Department will use to allocate the number of store slots. The actual number of participants in the county will determine how many store slots will be assigned to the county based upon the criteria of the particular tier the participant population density falls under. The proposed change in this definition reflects the change in the method of assigning store slots.
§ 1103.1. Certification and recertification reviews.
The Federal amendments require the Department to take into consideration the issue of ''participant access'' in making decisions relative to the authorization and participation of stores in the WIC Program. In current State regulations, the term ''participant hardship'' is used. To be consistent with terminology used in the Federal regulations governing the WIC Program, the Department proposes to change the term ''participant hardship'' in subsection (a) to ''inadequate participant access.'' This substitution is proposed throughout the remaining State regulations.
The Department proposes to clarify the store slot criterion employed in the certification and recertification review process by referencing, in subsection (b), § 1103.4(a)(12) and (b). These provisions provide that, not only must a store slot be available in a particular trade area, there must be a sufficient number of WIC participants shopping in a 1-mile radius to demonstrate a need to authorize the applying store within 1 mile of another WIC authorized store. The term ''sufficient participant shopping'' is defined in § 1103.4(a)(13). This criterion ensures that there is an appropriate geographic distribution of stores throughout the trade area where there is a demonstrated need based upon participant shopping.
Subsection (b)(6), as currently written, states that the purpose of the onsite review is to determine if the store meets all selection and limitation criteria in § 1103.4(a) and (b). The local agency conducts the review to determine if the store meets the selection criteria; the limitation criteria is only used when the Department must limit, based upon the regulations, the number of WIC authorized stores in a trade area. The Department proposes deleting language to make the provisions consistent with the actual procedure being used.
Subsection (c) pertains to the durations of a certification or recertification. The Department proposes to change the length of time for notification of the expiration of WIC certification from 15 days to 30 days for a store failing to apply for recertification. It also proposes to increase from 15 days to 30 days the advance notice required for termination of authorization for cause by either the Department or the store.
Subsection (g) pertains to the eligibility of a store that participates in the WIC Program if it has been denied certification or recertification. The Department proposes to add the word ''effective'' before the word ''date'' to clarify that the 6-month period which a store denied certification or recertification must wait before being considered eligible to reapply for participation in the WIC Program runs from the date the denial decision becomes enforceable.
§ 1103.2. Probationary certification.
The citations in subsection (b)(1) and (2) are corrected to reflect the change in numbering due to proposed changes to the regulations affecting the citations of the provisions that are referenced.
§ 1103.3. Authorization of store slots.
The Department proposes to change the method for allocating store slots. Previously, the Department used a two tier method based upon expected WIC participant in a particular area. This method recognized a difference between Philadelphia and the rest of this Commonwealth due to population density of the area. Less stores were authorized in the Philadelphia area because of the density of the population and the proximity of the population to the stores. However, as a result of discussions during the public meetings and a thorough review by the Department of the allocation of store slots, the Department proposes to change the method for allocating store slots to a three-tier method, rather than a two-tier method, based upon the density of WIC participant population per county. This method recognizes the differences in rural and urban areas throughout this Commonwealth, not just Philadelphia, and would have the effect of more evenly distributing store slots allocations to areas which may need additional stores to participate. The density of the participants per square mile will determine which tier the Department will use to allocate the number of store slots. The actual number of participants in the county will determine how many store slots will be assigned to the county based upon the criteria of the particular tier the participant population density falls under.
In addition to a more even geographic distribution of stores, it is anticipated that an additional 200 stores may be authorized to participate in the WIC Program. The reallocation, however, will not cause the loss of authorization to a store currently authorized.
The Department proposes to reallocate store slots annually to take into consideration shift in WIC participation to ensure that an adequate number of stores are authorized in areas where they are needed.
§ 1103.4. Selection and limitation criteria; authorization process.
The Department proposes to replace the term ''sales floor'' with ''premises'' in subsection (a)(5). As noted earlier, the Department proposes to change the requirements for the location of the minimum inventory that a WIC authorized store must maintain. Current regulations require a vendor to have available on the sales floor, at all times, the minimum inventory requirement of WIC allowable foods set forth in § 1103.5. The purpose of this was to ensure that the foods prescribed to a WIC participant were readily available for purchase on the sales floor. The Department established this requirement because of the concern that many participants would not ask if additional quantities of foods were available in the stock room if the foods were not available on the sales floor. As a result, the participants would not purchase the prescribed foods because they believed those foods were unavailable.
At public hearings, grocery store owners and managers disagreed. They noted that many times patrons do ask if foods are not available on the sales floor. The owners and managers felt that the requirement to have minimum inventory available at all times on the sales floor was not only burdensome, but impracticable, and that many times sufficient inventory is available in stockrooms to meet the needs of the participants.
As a result of discussions with store owners, the Department proposes to change this criterion to permit the store to meet the requirement if the inventory is maintained on the premises, not just on the sales floor. Therefore, if a store does not have the minimum inventory available for sale to a WIC customer on the sales floor, but would easily be able to provide the allowable foods immediately from the stockroom on the premises, the minimum inventory requirements would be met.
In subsection (a)(6)(i)(F) the Department proposes to change the word ''cans'' to ''containers'' for the single strength juice requirement in Food Prescription One. This change would permit a participant to purchase single strength juice in a variety of 46 ounce containers.
In subsection (a)(6)(ii) the Department proposes to change the requirements of Food Prescription Two from 24 13-ounce cans of concentrated contract brand milk or soy based infant formula to 31 13-ounce cans of concentrated contract brand milk or soy based infant formula. The reason for this proposed change is that the most prescribed infant formula food package prescribed to WIC participants no longer contains 24 cans, but rather contains 31 cans of concentrated formula.
The Department has proposed to add subsection (a)(13). The Department proposes to move the standard that a store may not be located within 1 mile of another WIC authorized store within the trade area unless there is sufficient participant shopping from a limitation criteria set forth under subsection (b)(2), to a selection criteria. The reason for this move is that the criterion used a method for selecting stores, rather than limiting stores. In addition, the Department has added language which sets forth three different tiers for determining what is ''sufficient participant shopping'' for the purpose of assigning store slots for which stores may be selected to fill.
§ 1103.5. Minimum inventory.
The Department proposes to substitute ''premises'' for ''sales floor'' in subsection (a) to accommodate the proposed change for the requisite location of minimum inventory requirements, as discussed earlier.
In subsection (b)(5)(i) the Department proposes to change the minimum inventory requirements of single strength juice from three varieties with a total of nine 46 ounce cans to three varieties with a total of nine 46 ounce containers. The change in the word ''cans'' to ''containers'' would allow the WIC participant to purchase juice in any 46 ounce form of container, and not restrict the purchase to only cans.
In subsection (b)(5)(ii) the Department proposes to change the word ''concentrate'' following the word ''frozen'' to reflect the appropriate terminology. In addition, the Department has added shelf stable concentrated juice as a choice for inventory requirements. This reflects the new available form of juice (shelf stable concentrate) which meets the nutritional requirements set forth in the Federal regulations governing the WIC Program.
§ 1103.6. Waiting list.
The Department proposes the addition of subsection (a)(4) to permit the Department to place a store on a waiting list, notwithstanding that a store slot is open, if there is not sufficient participant shopping within a 1 mile area to support an additional store. This facilitates an appropriate geographic distribution of stores. It also may work to the advantage of the store by not requiring that the store wait 6 months before it is eligible to reapply for authorization. It will allow the store to immediately be considered if there is an increase in participation to warrant authorization of an additional store or if a store slots becomes open due to other circumstances, such as a store closing or being disqualified from the program.
§ 1103.7. Participant hardship.
The Department proposes to change the title of this section from ''Participant hardship'' to ''Inadequate participant access'' to be consistent with the Federal regulatory language.
Throughout this section the term ''participant hardship'' has been changed to ''inadequate participant access.''
The Department proposes to add subsection (b) to clarify that inadequate participant access may also be considered, in limited circumstances, when there is a change of ownership of a WIC authorized store.
The Department proposes to revise the inadequate participant access criteria in subsection (c) to correlate differences in urban versus rural population density. In densely populated areas there should be greater accessibility to stores. Therefore, the Department proposes that the more densely populated an area the less distance between stores needs to be shown to establish inadequate participant access when a core number of participants would need to travel that distance if a store is removed from the WIC Program. The Department proposes to switch paragraphs (3) and (4) so that the two paragraphs pertaining to travel distances for ten or more participants are numbered consecutively.
§ 1105.1. Training.
In subsection (b)(5) the Department proposes to change the citation mentioned in the paragraph from § 1107.1 to 1107.1a(d)(16) to accommodate a proposed change in the location of the regulatory provision containing the relevant subject matter.
§ 1105.2. Overcharge recovery system.
In subsection (h) the Department proposes to change a citation mentioned in the paragraph to reflect a proposed change in the location of the regulatory provision containing the relevant subject matter.
§ 1105.3 Terms and conditions of participation.
In subsection (a) the Department again proposes to change the citation used in the regulation.
In subsection (a)(4) the Department proposes the addition of the words ''on the premises,'' which correlates to the proposed change the Department has made elsewhere to allow a store to maintain minimum inventory on the premises instead of on the sales floor exclusively.
§ 1105.4. Change of ownership of a WIC authorized store.
In subsection (c) the Department proposes to change the term ''participant hardship'' to ''inadequate participant access.''
§ 1105.6. Monitoring of WIC authorized stores.
In subsection (c)(1)(vi) the Department proposes to insert the words ''imposition of'' in front of the word ''sanctions'' to correct the title of § 1107.1. The change is necessitated as a result of the proposed changes in this rulemaking.
Chapter 1107. Sanctions.
The majority of the proposed changes resulting from the mandatory Federal regulatory changes are in §§ 1107.1--1107.2 (relating to imposition of sanctions; disqualifications; and civil money penalties). Because there were so many changes necessitated as a result of the Federal changes, the Department proposes to delete the prior text of §§ 1107.1 and 1107.2 completely. The proposed new text of these sections contain some of the material previously contained in the sections, as well as the changes proposed to meet the Federal regulatory requirements.
§ 1107.1. Sanctions.
The Department proposes to change the title of this section from ''Sanctions'' to ''Imposition of sanctions.'' This title would be more descriptive of the text contained in the section. The proposed text of this section would describe the circumstances under which the Department will impose different types of sanctions, and whether the Department will offer civil money penalties in lieu of disqualifications.
This section identifies when the Department will impose a sanction, and when a sanction is not appealable. The requirements in this section are consistent with Federal regulatory requirements in 7 CFR 246.12(f)(2)(xviii). In particular, the Federal changes published on March 18, 1999, specifically make nonappealable both the Department's determination of inadequate participant access and the disqualification of a store from the WIC Program as a result of a disqualification of the store from the Food Stamp Program. Although § 1113.1 (relating to right to appeal) sets forth the types of decisions that are appealable, and the text of that section is consistent with the proposed text of this section, the language was included here to ensure clarity that some issues decisions are non- appealable.
The Federal regulatory changes in 7 CFR 246.12(f)(2)(ix) and (k)(1)(ix) provide that the Department may impose a civil money penalty against a store disqualified from the Food Stamp Program in lieu of a WIC Program disqualification if it determines that inadequate participant access would result. The proposed text of subsection (b) explains this option.
The proposed text of subsection (c) would permit the Department to impose a civil money penalty in lieu of a Federally prescribed disqualification in § 1107.1a(b)--(d) (relating to disqualifications) if the Department determines that the disqualification would result in inadequate participant access. This is an option permitted under 7 CFR 246.12(f)(2)(xx). The Department has chosen to exercise this option to ensure that there is adequate access to supplemental foods for WIC participants.
This proposed text of subsection (d) provides notice to WIC authorized stores that disqualification from the WIC Program may result in disqualification from the Food Stamp Program and will not be subject to administrative or judicial review under the Food Stamp Program. The proposed text is identical to that contained in 7 CFR 246.12(f)(2)(xxii).
The proposed text of subsections (e), (f) and (g) currently appear in § 1107.1(b), (c) and (d), and is consistent with 7 CFR 246.12(k)(10). These subsection designations would change as part of the proposed revision and reorganization of this section.
§ 1107.1a. Disqualifications.
The Department proposes the addition of this new section to identify the Federally mandated disqualifications published in the Federal Register on March 18, 1999. Prior to these changes, the Federal regulations permitted the State agency operating the WIC Program to determine the type and level of sanction based upon the nature and severity of the program violation, provided that the disqualification did not exceed 3 years. The Federal regulations now require not only specific sanctions for certain program violations, but also permanent disqualification of a store which is convicted in trafficking in food instruments (defined as WIC check under State regulations) or selling firearms, ammunition, explosives or controlled substances in exchange for food instruments under 7 CFR 246.12(f)(2)(xx). The proposed text of subsection (a) recognizes this requirement. The Department proposes to set forth the other Federally mandated sanctions in subsections (b)--(d)(1).
The new Federal regulatory requirements, however, permit the State agency to impose sanctions in addition to those Federally mandated. This requirement recognizes that State programs subject to the Federal regulations operate differently and provide the State agency the ability to require compliance with individual State program requirements. The Federal regulations do set limits on these disqualifications, however, in that a sanction not mandated by Federal regulation may not exceed 1 year in duration.
The 1-year disqualification proposed in subsection (d), for the conduct listed in subsection (d)(2)--(16) is based upon the Department's assessment of punitive measures it needs to impose to effectively operate the WIC Program. These disqualifications are currently in the State regulations. As a result of the changes to the Federal regulations, the disqualification period proposed for some of these violations would be significantly less than authorized in current regulation.
This proposed text of subsections (e)--(i) is required under 7 CFR 246.12(k)(1)(v), (vi), (xii), (vii) and (viii), respectively.
The text of subsection (j) is currently in § 1107.1(i). The proposed language, which states that a disqualification imposed as a result of this subsection may not exceed 1 year, recognizes the Federally mandated limits upon which a state may impose a sanction not specifically set forth in the Federal regulations. The proposed text would reference subsections different than those now referenced in § 1107.1(i) to be consistent with the reorganization that is being proposed.
The text of subsection (k) is currently contained in § 1107.1(j). The Department proposes to change the time period for providing advance notice of disqualification from 15 days to 30 days.
The text of subsection (l) is currently in § 1107.1(k).
§ 1107.2. Civil money penalties.
Prior to the changes in the Federal regulations published on March 18, 1999, there were no specific requirements relating to the imposition of civil money penalties in lieu of disqualification. The Department had chosen to use civil money penalties in lieu of disqualification of WIC authorized stores when the disqualification would result in participant hardship (what is now called inadequate participant access). The purpose of this was to further the purpose of the WIC Program in ensuring participant access to supplemental food benefits, while enabling the Department to impose some sanctions for an authorized store's failure to comply with WIC Program requirements.
Federal regulations now specifically set forth when civil money penalties may be used in lieu of disqualifications and the formula which must be used for calculating the civil money penalty. The Department proposes to replace the current text of this section with the proposed new provisions due to the magnitude of the proposed revisions. The proposed text does contain, however, some of the requirements previously set forth.
In subsection (a) the first sentence of the proposed text of this paragraph is identical to that contained under current subsection (a). The second sentence, noting that the Department will not offer a civil money penalty in lieu of Federally mandated disqualifications for third or subsequent violations, is required under 7 CFR 246.12(k)(1)(vi).
The proposed text of subsection (b)(1) sets forth the formula for calculating civil money penalties for those Federally mandated disqualifications enumerated in proposed § 1107.1a(b)--(d)(1). The formula for calculating civil money penalties for these disqualifications may be found in 7 CFR 246.12(k)(1)(x).
In subsection (b)(2) the Department proposes to prescribe the formula for calculating civil money penalties for violations enumerated in proposed § 1107.1a(d)(2)--(16). The Department is permitted, under 7 CFR 246.12(k)(2), to impose civil money penalties in lieu of disqualifications which are not specifically in the Federal regulations. The Department proposes to exercise this option in lieu of imposing the disqualifications under § 1107.1a(d)(2)--(16), which are the disqualifications that are not Federally mandated. There is no formula mandated by the new Federal requirements for these type of disqualifications. The Department proposes to use the same formula it currently uses for calculating civil money penalties. This formula is identical to that in proposed § 1107.2(b)(1) and 7 CFR 246.12(k)(xx), with one exception. The Department proposes to use 5% of the average monthly sales, and not 10% of the average monthly sales, multiplied by the period of disqualification, to calculate the civil money penalty.
The proposed text of subsection (c) sets forth the limitations imposed under 7 CFR 246.12(k)(1)(x) and (2)(i).
The proposed text of subsection (d) currently appears in subsection (c).
The proposed text of subsection (e) is required under 7 CFR 246.12(k)(6).
The proposed text of subsections (b) and (g) currently appear in subsections (e) and (f).
§ 1113.1. Right to appeal.
The Department proposes to revise and reorganize this section into five subsections. The Department proposes to add the language ''during the period of authorization'' following the words ''adverse action'' in proposed subsection (a). This would clarify that the expiration of an authorization to participate in the WIC Program as a result of denial of a recertification application is not an adverse action which will be postponed until a time as an adjudication and order is issued by the hearing examiner.
The Department proposes to add subsection (b) to set forth specific actions which are not subject to appeal. In addition to the expiration of a WIC authorization, this paragraph recognizes the two additional actions not subject to appeal under the recent amendment of the Federal regulations.
§ 1113.2. Appeal procedures.
The Department proposes the addition of language to this section to clarify that only when an adverse action is appealable, will the Department provide notice to the store of its right to an administrative appeal.
D. Fiscal Impact
The WIC Program is 100% Federally funded. No State dollars are involved in the operation of the WIC Program. The proposed regulatory changes to § 1103.3 (relating to authorization of store slots) which would change the method of allocating store slots based upon WIC population density has the potential for increasing by approximately 200 the number of stores authorized to participate in the WIC Program. As a result, the Department anticipates an increase of approximately $96,000 annually in store related monitoring costs.
E. Paperwork Requirements
The proposed amendments will not increase paperwork for the Department, WIC Program participants or those grocery stores voluntarily participating in the WIC Program.
F. Effective Date/Sunset Date
The effective date of the amendments will be May 17, 2000. These regulations will be monitored continually and will be updated as required by changes in Federal statute or Federal regulations governing the WIC Program. Therefore, no sunset date has been set.
G. Statutory Authority
The WIC Program was authorized through an amendment to the 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 program. In the Commonwealth, the WIC Program receives 100% of its funding from the USDA-FNS.
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) which 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 Fiscal Year 1996.
The existing State regulations were developed and published at 29 Pa.B. 3841 (July 24, 1999), following the decision of the Commonwealth Court decision in Giant Food Stores, Inc. v. Commonwealth of Pennsylvania, Department of Health, 713 A.2d 177(1998). The 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 Part VIII (relating to supplemental nutrition program for women, infants and children (WIC Program)). The regulations also deleted §§ 8.41--8.74, the Department's then existing regulations pertaining to the WIC Program's administrative appeals.
The proposed amendments contained herein are submitted under the Department's general power and duty to protect the health of the people of the Commonwealth (71 P. S. § 532), and under the Giant decision.
H. Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on February 9, 2000, the Department submitted a copy of the proposed rulemaking, to the Independent Regulatory Review Commission (IRRC) and to the Chairpersons of the House Committee on Health and Human Services and the Senate Committee on Public Health and Welfare. In addition to submitting the proposed rulemaking, the Department has 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.'' A copy of this material is available to the public upon request.
If IRRC has objections to any portion of the proposed rulemaking, it will notify the Department within 10 days of the close of the Committees' review period. The notification shall specify the regulatory review criteria which have not been met by that portion. The Regulatory Review Act specifies detailed procedures for review, prior to final publication of the regulations, by the Department, the General Assembly and the Governor, of objections raised.
I. Contact Person
Interested persons are invited to submit all comments, suggestions or objection regarding the proposed amendments to Greg Landis, Chief, Grants and Retail Store Management Unit, WIC Program, Room 604, Health and Welfare Building, Harrisburg, PA 17109, (717) 783-1289, within 30 days after publication of this notice in the Pennsylvania Bulletin. Persons with a disability may also submit comments, suggestions or objections regarding the proposed amendments to Greg Landis in alternative formats, such as by audio tape, braille or by using TDD: (717) 783-6514. Persons with a disability who require an alternative format of this document (that is, large print, audio tape, braille), should contact Greg Landis so that he may make necessary arrangements.
ROBERT S. ZIMMERMAN, Jr.,
SecretaryFiscal Note: 10-161. No fiscal impact; (8) recommends adoption.
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:
* * * * * Premises--The sales floor and storage areas within the building housing the WIC authorized store.
* * * * * Store slot--A slot established by the Department for a WIC authorized store in a particular geographic area. The number of store slots the Department authorizes for a geographic area assigned to a local agency is based on the [expected] density of participant population [of that area] in the county and the actual number of participants in the county.
* * * * *
CHAPTER 1103. AUTHORIZATION OF STORES § 1103.1. Certification and recertification reviews.
(a) Qualifying for certification or recertification. To be certified or recertified as a WIC authorized store, a store shall meet the selection criteria in § 1103.4(a) (relating to selection and limitation criteria; authorization process) at the time of the onsite review. If the number of applicants satisfying the selection criteria exceeds the number of stores the Department permits to participate in the WIC Program in a trade area under the limitation criteria in § 1103.4(b), the Department will determine which store to certify or recertify under the process in § 1103.4(c). The Department will exempt a store from satisfying the selection and limitation criteria only if there is a finding of [participant hardship] inadequate participant access, as set forth in § 1103.7 (relating to [participant hardship] inadequate participant access).
(b) Certification or recertification review process. The certification or recertification review process is as follows:
* * * * * (2) The local agency shall determine if a store slot is available [in the trade area in which the store seeking certification or recertification is located] in accordance with § 1103.4(a)(13) and (b) (relating to selection and limitation criteria; authorization process).
* * * * * (6) The local agency shall schedule an onsite review of the store for the purpose of determining if the store meets the selection [and limitation] criteria [set forth] in § 1103.4(a) [and (b)]. The local agency will notify the store of the approximate date of the review.
* * * * * (c) Duration of certification or recertification. The certification or recertification of a store shall remain in effect until the store is disqualified, changes ownership, withdraws from the WIC Program, its application for recertification is denied or its certification expires if it fails to apply for recertification. The Department will provide [15] 30 days written notice to the store prior to expiration of WIC [authorization] certification for any store failing to apply for recertification. Either the Department or the WIC authorized store may terminate the [authorization] certification for cause after providing at least [15] 30 days advance written notice.
* * * * * (e) Moratorium on applications. The Department will not accept applications, or schedule or conduct certification reviews in a trade area 90 days or less prior to the scheduled start date of the contemporaneous certification/recertification reviews in that trade area. The Department will grant an exception to this moratorium only if the Department finds that there would be [participant hardship] inadequate participant access, as set forth in § 1103.7, if it does not consider the application. A store granted certification under this exception shall be exempt from the contemporaneous certification/recertification review if it has been certified for less than 60 days prior to the date the contemporaneous reviews begin in the trade area.
* * * * * (g) Eligibility for stores denied certification or recertification. A store which has been denied certification or recertification shall wait 6 months from the effective date of the Department's decision to reapply, except a store denied certification or recertification under § 1103.4(c)(2) will be placed on a waiting list and will be considered immediately for certification if a store slot becomes open.
§ 1103.2. Probationary certification.
(a) Criteria for probationary certification. If during the certification or recertification review, the store fails to meet one or more of the qualifications in § 1103.4(a) and (b) (relating to selection and limitation criteria; authorization process), the Department may grant probationary certification to the store for a period not to exceed 6 months when either of the following applies:
(1) [Participant hardship] Inadequate participant access would occur if the store is not certified or recertified.
* * * * * (b) Probationary certification reviews.
(1) If a store receives probationary certification, except in situations of [participant hardship] inadequate participant access identified in [§ 1103.7(b)(8) (relating to participant hardship)] § 1103.7(c)(8) (relating to inadequate participant access), the Department will conduct an unannounced onsite review during the probationary certification period to determine if regular status should be granted to the store. The Department may rescind probationary certification and deny the store's application to serve as a WIC authorized store if the store fails to meet one or more of the selection criteria during this review.
(2) If a store receives probationary certification due to [participant hardship] inadequate participant access as identified in [§ 1103.7(b)(8)] § 1107.3(c)(8) the Department will conduct a certification review of the store and any other stores on the waiting list within the store's trade area. The Department may rescind probationary certification and deny the store's application to serve as a WIC authorized store if the store fails to meet one or more of the selection or limitation criteria during this review.
(c) Extension of probationary certification. If the store fails the review conducted during the probationary certification period, and [participant hardship] inadequate participant access exists as determined by the Department, the Department may extend probationary certification for an additional 3 months during which time at least one representative of the store who is responsible for training store personnel on the WIC Program shall attend corrective training.
* * * * * § 1103.3. Authorization of store slots.
[The Department will assign one store slot for every 160 participants anticipated by the Department to participate in the WIC Program, except in Philadelphia, where the Department will assign one store slot for every 260 participants anticipated by the Department to participate in the WIC Program.]
(a) Assignment of store slots. The Department will assign store slots based upon WIC participant density according to the following:
(1) In counties with WIC participant density greater than 100 participants per square mile, the Department will assign one store slot for every 175 WIC participants.
(2) In counties with WIC participant density of 25 to 100 participants per square mile, the Department will assign one store slot for every 150 WIC participants.
(3) In counties with WIC participant density less than 25 participants per square mile, the Department will assign one store slot for every 125 WIC participants.
(b) Yearly allocation of store slots. By October 1 of each year, the Department will evaluate WIC participant population to determine store slot allocations per county for each Federal Fiscal Year.
§ 1103.4. Selection and limitation criteria; authorization process.
(a) Selection criteria. The Department will use the following selection criteria to identify stores that meet the operational criteria to serve as a WIC authorized store:
* * * * * (2) A store shall serve or reasonably expect to serve at least 25 participants per month.
(i) The Department will provide a store seeking certification which has not been certified previously, an 8-month period to determine if the store is serving 25 participants. The Department may disqualify a store for a period of no less than 6 months in accordance with § 1107.1(i) (relating to imposition of sanctions) if it is not serving 25 participants at the end of the 8-month period.
* * * * * (5) The store shall have available on the [sales floor] premises at all times the minimum inventory requirements in § 1103.5 (relating to minimum inventory) of allowable foods.
(6) The store shall have shelf prices less than the maximum allowable cost established by the Department for Food Prescription One and Food Prescription Two. The highest price of each allowable food available at the store, regardless of brand, shall be recorded to determine if the store's prices are within the maximum allowable prices established by the Department. The Department will publish in the Pennsylvania Bulletin, no later than September 15 of each year, the maximum allowable prices for Food Prescription One and Food Prescription Two. Revisions to the maximum allowable prices will be published in the same manner. Food Prescription One and Food Prescription Two are as follows:
(i) Food Prescription One consists of the following:
* * * * * (F) Four 11.5 to 12 ounce containers of frozen concentrated juice or four 46 ounce [cans] containers of single strength juice.
* * * * * (ii) Food Prescription Two consists of: [24] Thirty-one 13 ounce cans of concentrated contract brand milk or soy based infant formula.
* * * * * (10) The store may not be currently disqualified from participation in the Food Stamp Program [or have had a sanction imposed by the USDA-FNS for Food Stamp Program violations within 2 years prior to the application to participate in the WIC Program].
* * * * * (13) The store may not be located within 1 mile of another WIC authorized store within the same trade area unless the Department determines that there is sufficient WIC participant shopping within the 1 mile area to support an additional WIC authorized store or stores. For the purpose of this paragraph, to support the authorization of each additional WIC authorized store within the 1 mile radius, sufficient WIC participant shopping shall be determined by the following:
(i) For counties with WIC participant density greater than 100 participants per square mile, there shall be at least 175 WIC participants shopping within the 1 mile of the applying store for each store slot authorized.
(ii) For counties with WIC participant density of 25 to 100 participants per square mile, there shall be at least 150 WIC participants shopping within the 1 mile of the applying store for each store slot authorized.
(iii) For counties with WIC participant density less than 25 participants per square mile, there shall be at least 125 WIC participants shopping within the 1 mile of the applying store for each store slot authorized.
(b) Limitation criteria. [The Department will use the following criteria to limit the number of WIC authorized stores in a trade area:
(1)] A store slot shall be available in the trade area in which the store is located.
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