CHAPTER He-P
3200 SPECIAL SUPPLEMENTAL NUTRITION
PROGRAM FOR WOMEN, INFANTS AND CHILDREN (WIC)
Statutory
Authority: RSA 132:10-b, I
PART He-P
3201 DEFINITIONS
He-P 3201.01 Definitions.
(a)
“Above-50-percent” means deriving, or expecting to derive, more than
half of annual revenue from the sale of food items from WIC food instruments
including WIC gross food sales that exceed, or are likely to exceed, gross food
sales derived from the food stamp program.
(b) “Applicant” means an individual
who appears in person or by telephone to request program benefits.
(c)
“Authorized vendor” means a vendor that has been approved to redeem food
instruments as defined in (s) below.
(d)
“Authorized vendors in the same geographical area” means a minimum of 5
authorized vendors, all within a 7-mile radius of each other, are accepting
food instruments from 20 or more households on a monthly basis.
(e) “Benefits” means supplemental
foods and nutrition education designed to improve the health status of women, infants,
and children.
(f)
“Breastfeeding women” means “breastfeeding women” as defined in 7 CFR
246.2.
(g)
“Cash value voucher” means a fixed dollar amount check, voucher,
electronic benefit transfer (EBT) card or other document which is used by a participant
to obtain approved fruits and vegetables as defined in 7 CFR 246.2.
(h)
“Categorical eligibility” means “categorical eligibility” as defined in
7 CFR 246.2.
(i) “Certification” means “certification” as
defined in 7 CFR 246.2.
(j) “Certification period” means the
period of program benefits established by federal regulations according to
participant category.
(k)
“Chain store” means multiple stores owned by the same entity in the
State of
(l)
“Children” means “children” as defined in 7 CFR 246.2.
(m) “Competent professional authority”
means “competent professional authority” as defined in 7 CFR 246.2.
(n)
“Competitive price criteria” means the criteria used in the determination
of a price cap which equals the average price of a product in a peer group plus
1.5 times the standard deviation of all vendor submitted prices for each
product.
(o)
“Days” means calendar days unless otherwise specified.
(p)
“Department” means the New Hampshire department of health and human
services.
(q) “Disqualification” means the act
of ending program participation of a participant, authorized vendor or local
agency, whether as a punitive sanction or for administrative reasons.
(r) “Enrollment” means the enlistment
of an applicant into the program through the receipt of benefits.
(s)
“Food delivery system” means the method used by the department and local
agencies to provide supplemental foods to participants.
(t) “Food instrument” means a voucher,
check, electronic benefit transfer (EBT) card, coupon or other document which
is used to obtain supplemental foods through the special supplemental nutrition
program for women, infants and children (WIC).
(u)
“Homeless” means lacking a fixed or regular nighttime residence.
(v)
“Inadequate participant access” means the average monthly number of
households redeeming food instruments at an authorized vendor is 20 or more and
another authorized vendor is not within 7 miles.
(w)
“Incidence” means one isolated instance or single occurrence of a
violation of WIC program rules.
(x)
“Infants” means “infants” as defined in 7 CFR 246.2.
(y) “Local agency” means “local agency” as
defined in 7 CFR 246.2.
(z)
“Nutrition education” means “nutrition education” as defined in 7 CFR
246.2.
(aa)
“Nutritional risk” means “nutritional risk” as defined in 7 CFR 246.2.
(ab) “Participants” means
“participants” as defined in 7 CFR 246.2 and includes a parent, legal guardian,
or other adult representing a minor child.
(ac)
“Participation” means “participation” as defined in 7 CFR 246.2.
(ad) “Peer group” means a
classification of authorized vendors into groups based on common
characteristics or criteria that affect food prices for the purpose of applying
appropriate competitive price criteria.
(ae)
“Postpartum women” means “postpartum women” as defined in 7 CFR 246.2
and includes non-breastfeeding women.
(af) “Pregnant women” means “pregnant women” as
defined in 7 CFR 246.2.
(ag)
“Program” means “program” as defined in 7 CFR 246.2.
(ah)
“Proxy” means an individual designated in writing to receive and redeem
a food instrument on behalf of a participant or a parent or a caretaker of an
infant or child participant.
(ai)
“Sanctions” means administrative actions taken against participants and
vendors for reasons of program abuse.
(aj) “Single investigation” means 2 or more
on-site transactions within a 12-month period, the number of which depends on
the severity of the alleged vendor violation, in which a department
representative covertly poses as a participant, parent or caretaker of an
infant or child participant or proxy.
(ak) “Supplemental foods” means “supplemental
foods” as defined in 7 CFR 246.2.
(al)
“Suspension” means a temporary prohibition from participation in the
program.
(am)
“Termination” means the removal of a vendor or participant from the
program for cause and/or failure to comply with any WIC program rule or
requirement.
(an)
“Vendor” means any retail food store or pharmacy authorized to redeem
food instruments.
(ao) “Vendor agreement” means a binding legal
agreement between the retailer and the state agency.
(ap)
“WIC approved” means meets the criteria for approved foods described in
7 CFR Part 246.
Source. #4518, eff 10-28-88; EXPIRED 10-28-94
New. #6226, eff 4-24-96; ss by #7489, eff 5-11-01;
ss by #7774, eff 10-8-02; ss by #8580, eff 3-11-06; ss by #9556, eff
10-1-09; ss by #10583, eff 10-1-14; amd by #12199,
eff
6-3-17; ss by #12858, eff 8-23-19
PART He-P
3202 PARTICIPANT ELIGIBILITY CRITERIA
He-P 3202.01 Residence.
(a) Except as allowed in (c) below, all WIC
applicants shall reside within the jurisdiction of the state of New Hampshire
and the service area of the local agency.
(b) As proof of
residence, the applicant shall provide to the local agency one of the following
documents:
(1) Government issued
identification card or driver’s license;
(2) Current utility bill or
rent receipt;
(3) New Hampshire resident tax
receipt;
(4) Post-marked envelope with the
physical address and the name of applicant, or if applicable, the name of the
applicant’s parent, guardian, or caretaker;
(5) Mortgage statement
containing the address; or
(6) Pay stub with name and
address.
(c) A homeless or migrant applicant shall not be
required to provide residence documentation.
Source. #4518, eff 10-28-88; EXPIRED 10-28-94
New. #6226, eff 4-24-96; ss by #7489, eff 5-11-01;
ss by #7774, eff 10-8-02; ss by #8580, eff 3-11-06; ss by #9556, eff 10-1-09;
ss by #10583, eff 10-1-14;
ss by #12858, eff 8-23-19
He-P 3202.02 Income. All applicants shall have an income at or
below 185 percent of the Federal Poverty Guidelines as published annually in
the Federal Register in effect at the time of income determination. Income shall be verified by proof of income
such as a paycheck stub, employer verification, or federal tax return or participation
in another program for which financial eligibility is at or below the same
standard.
Source. #4518, eff 10-28-88; EXPIRED 10-28-94
New. #6226, eff 4-24-96; ss by #7489, eff 5-11-01;
ss by #7774, eff 10-8-02; ss by #8580, eff 3-11-06; ss by #9556, eff 10-1-09;
ss by #10583, eff 10-1-14;
ss by #12858, eff 8-23-19
He-P 3202.03 Category. All applicants shall be pregnant,
breastfeeding, or postpartum women, infants, or children under age 5 as
verified by information such as one of the following:
(a) Health care provider documentation of
applicant’s pregnancy unless visibly pregnant; or
(b) Applicant’s birth certificate containing date
of birth as documentation of age.
Source. #4518, eff 10-28-88; EXPIRED 10-28-94
New. #6226, eff 4-24-96; ss by #7489, eff 5-11-01;
ss by #7774, eff 10-8-02; ss by #8580, eff 3-11-06; ss by #9556, eff 10-1-09; ss
by #10583, eff 10-1-14;
ss by #12858, eff 8-23-19
He-P
3202.04 Nutritional Risk.
(a) An applicant shall be eligible to participate
in the program if the applicant is at nutritional risk as defined by 7 CFR
246.2.
(b) An applicant shall be deemed to be at
nutritional risk if a competent professional authority determines that the
applicant has any of the conditions listed in 7 CFR 246.7(e).
Source. #4518, eff 10-28-88; EXPIRED 10-28-94
New. #6226, eff 4-24-96; ss by #7489, eff 5-11-01;
ss by #7774, eff 10-8-02; ss by #8580, eff 3-11-06; ss by #9556, eff 10-1-09;
ss by #10583, eff 10-1-14;
ss by #12858, eff 8-23-19
He-P 3202.05 Priority System. If funding is insufficient for complete
participation within the area serviced by the local agency, participation shall
be limited by the use of prioritization in accordance with 7 CFR 246.7(e)(4).
Source. #4518, eff 10-28-88; EXPIRED 10-28-94
New. #6226, eff 4-24-96; ss by #7489, eff 5-11-01;
ss by #7774, eff 10-8-02; ss by #8580, eff 3-11-06; ss by #9556, eff 10-1-09;
ss by #10583, eff 10-1-14;
ss by #12858, eff 8-23-19
PART He-P
3203 FOODS PROVIDED
He-P 3203.01 Supplemental Foods.
(a) Supplemental foods shall be provided to
participants based upon category and nutritional need in accordance with 7 CFR
246.10(e)(10) and 7 CFR 246.11(c) where category refers to a pregnant woman,
breastfeeding woman, postpartum woman, infant, or child.
(b) Maximum allowable types, quantities, or
volumes of foods may be tailored by a competent professional authority,
according to an individual’s nutritional status or a licensed healthcare
provider’s prescription within a category as specified above.
Source. #4518, eff 10-28-88; EXPIRED 10-28-94
New. #6226, eff 4-24-96; ss by #7489, eff 5-11-01;
ss by #7774, eff 10-8-02; ss by #8580, eff 3-11-06; ss by #9556, eff 10-1-09;
ss by #10583, eff 10-1-14;
ss by #12858, eff 8-23-19
He-P 3203.02 Approved Foods. Food packages and food types shall comply
with 7 CFR 246.10(c).
Source. #4518, eff 10-28-88; EXPIRED 10-28-94
New. #6226, eff 4-24-96; ss by #7489, eff 5-11-01;
ss by #7774, eff 10-8-02; ss by #8580, eff 3-11-06; ss by #9556, eff 10-1-09;
ss by #10583, eff 10-1-14;
ss by #12858, eff 8-23-19
He-P
3203.03 Restrictions.
(a) Flavored milk shall not be allowed as an
approved supplemental food.
(b) Only 1% low fat milk or skim milk shall be
allowed for women and children older than 24 months, except as allowed in (c)
below.
(c) If the participant has special medical needs
that require whole milk and special formula, for which medical documentation
from a licensed healthcare provider is provided to the department, the
participant shall be allowed whole milk and special formula.
(d) Dried fruits shall not be allowed as an
approved supplemental food.
(e) Fresh bananas as
partial substitute for infant foods shall not be allowed as an approved
supplemental food.
(f) Foods containing artificial sweeteners such
as aspartame, sucralose, or saccharine shall not be allowed as an approved
supplemental food.
(g) Low iron infant formula shall not be allowed
as an approved supplemental food.
(h) The department shall limit approved
supplemental food items if:
(1) Container size or type
changes prior to the department annual update of approved foods as described in
(i) and (j) below;
(2) The item is not widely
available within New Hampshire; or
(3) The foods are included in a
cost-containment initiative such as a competitively bid manufacturers’ rebate.
(i)
The department shall periodically and as
necessary review and approve foods which meet the criteria in He-P 3203.02 and
He-P 3203.03.
(j) The department
shall limit food brands or items through competitive procurement or
cost-containment actions in accordance with Adm 603, provided such actions
would reduce actual costs of supplying these foods to participants.
Source. #4518, eff 10-28-88; EXPIRED 10-28-94
New. #6226, eff 4-24-96; ss by #7489, eff 5-11-01;
ss by #7774, eff 10-8-02; ss by #8580, eff 3-11-06; ss by #9556, eff 10-1-09; ss
by #10583, eff 10-1-14;
ss by #12858, eff 8-23-19
He-P 3203.04 Prorating Food Packages.
(a) The New Hampshire WIC proration schedule
shall be as listed in Table 3200.1 below and subject to the conditions in (b)
and (c) below:
Table 3200.1 New Hampshire WIC Proration Schedule
Number of Days Remaining |
Percent of Benefits Issued |
0-5 days |
25% |
6-17 days |
50% |
18-23 days |
75% |
24-31 days |
100% (full package provided) |
(b) When a new family member is added to an
existing benefited group, the percentage of benefits provided shall be adjusted
to match the existing groups benefit cycle.
(c) When an applicant is certified for a 30-day
temporary certification and added to an existing family the percentage of
benefits provided shall be adjusted to match the existing group’s benefit cycle.
(d) When a participant is terminated or suspended
from the program, the system shall prorate according to the following:
(1) If 15 days’ notice of
termination or suspension is contained within the current use month, there shall
be no proration. Issuance shall be 100%
of the current use month and future months shall be voided; or
(2) If the 15 days’ notice of
termination or suspension extends into the following use month, the next
month’s benefit’s issuance shall be prorated by 50% and future benefits shall
be voided.
Source. #4518, eff 10-28-88; EXPIRED 10-28-94
New. #6226, eff 4-24-96; ss by #7489, eff 5-11-01;
ss by #7774, eff 10-8-02; ss by #8580, eff 3-11-06; ss by #9556, eff 10-1-09;
ss by #10583, eff 10-1-14;
ss by #12858, eff 8-23-19
PART He-P
3204 LOCAL AGENCY PARTICIPATION
He-P 3204.01 Local Agency Requirements. A local health or human service agency shall
certify participants and provide them with food benefits, nutrition education,
and related benefits under State-approved agreements between the local health
and human service agency and the department in accordance with 7 CFR 246.5 and
7 CFR 246.6.
Source. #4518, eff 10-28-88; EXPIRED 10-28-94
New. #6226, eff 4-24-96; ss by #7489, eff 5-11-01;
ss by #7774, eff 10-8-02; ss by #8580, eff 3-11-06; ss by #9556, eff 10-1-09;
ss by #10583, eff 10-1-14;
ss by #12858, eff 8-23-19
PART He-P 3205 VENDOR
PARTICIPATION
He-P 3205.01 Selection of Vendors.
(a) The following procedures shall apply to the selection
of vendors for the WIC program:
(1) Retail food stores and
pharmacies eligible to be authorized shall submit a written application to the
department which includes, at a minimum:
a. Legal name and physical
address of store;
b. Billing name and address, if
different;
c. Business phone number and
owner’s personal phone number;
d. Name(s) of owner(s), type of
ownership, and previous ownership(s);
e. Owner’s home address;
f. Owner’s e-mail address;
g. Name and mailing address of
landlord;
h. Name of manager;
i. Store square footage;
j. Food establishment class
license;
k. Hours of operation;
l. Number of registers and
scanners;
m. Annual or estimated sales;
n. List of primary WIC food
suppliers, including infant formula;
o. Current food stamp program
identification number and authorization status, including any actions pending
or under appeal;
p. The full names of any local
agency staff who hold dual employment with the store or pharmacy;
q. A full disclosure by the owner,
partner, officer, or manager of any convictions or civil judgments outlined in
He-P 3205.01(b)(14); and
r. The full names and mailing
addresses of any owners, partners, or principle officers;
(2) Vendors shall provide
information regarding gross food sales and inventory supplier records for
approved foods upon the request by the department in order to evaluate the
vendor’s eligibility under He-P 3205.01(a) and (b) and 7 CFR 246.12(h)(xv); and
(3) An on-site review of each
new applicant vendor shall be performed by the department in accordance with 7
CFR 246.12(g)(vii)(5) as follows:
a. Department employees who
hold dual employment with any WIC-authorized or applicant vendor, regardless of
capacity, shall not be involved in the review of vendor qualifications for
authorization;
b. The department shall assess
the applicant vendor’s qualifications using the selection criteria in
accordance with (b) below; and
c. The assessment shall include
a price inventory in order to determine whether or not the applicant vendor
meets the competitive price selection criteria.
(b) The department shall deny authorization of an
applicant vendor or terminate an authorized vendor if any of the following
criteria are true at any time:
(1) The store location is not
within NH borders;
(2) The applicant vendor or
authorized vendor does not provide information regarding gross food sales and
inventory supplier records upon request by the department in accordance with
He-P 3205.02(a) and 7 CFR 246.12(h)(xvi);
(3) The department determines
that the applicant vendor or authorized vendor is not able to meet all program
requirements or existing selection criteria as evidenced by:
a. Sanction points obtained
under He-P 3207.03;
b. Category I violations as
described in He-P 3207.03(b);
c. Monitoring requirements in
accordance with He-P 3206;
d. Failure to attend
face-to-face training upon initial application as set forth in 7 CFR 246.12(i)(1); or
e. Failure to attend
face-to-face training as scheduled by the department thereafter as described in
He-P 3205.04;
(4) The store’s annual revenue
from sales of WIC-approved food meets the “above 50 percent” threshold, as
defined in He-P 3201.01(a), unless inadequate participant access exists;
(5) The applicant vendor or
authorized vendor does not purchase all infant formula from the department’s
approved list of manufacturers, distributors, and retailers;
(6) A minimum quantity and variety
of foods as listed in the vendor agreement and approved in accordance with He-P
3203.02 and He-P 3203.03 are not available for purchase at a retail food store,
even if inadequate participant access would be a result of such denial;
(7) The price ranges of foods
approved in accordance with He-P 3203.02 and He-P 3203.03 in retail food stores
are not comparable to or lower than currently authorized vendors in the same
peer group;
(8) The applicant vendor or
authorized vendor is not open for business at least 9 hours per day, 6 days a
week;
(9) A conflict of interest
exists in that a retail store employee is dually employed by the WIC program;
(10) The applicant vendor or
authorized vendor has prior, pending, or under appeal WIC or food stamp program
disqualifications, civil money penalties, unpaid civil money penalties, or other
sanctions;
(11) For retail food stores
only, the applicant vendor or authorized vendor is not participating in the the supplemental nutrition assistance program (SNAP);
(12) The applicant vendor or
authorized vendor does not accept, at a minimum, cash for food purchases from
the general public as well as WIC participants;
(13) The majority of comments
and recommendations from local agency staff and participants indicate a negative
assessment;
(14) In accordance with 7 CFR
246.12(g)(3)(ii), the current owner(s), officer(s), or manager(s) have been
criminally convicted of or had a civil judgment for any of the following in the
previous 6 years:
a. Fraud;
b. Antitrust violations;
c. Embezzlement;
d. Theft;
e. Forgery;
f. Bribery;
g. Falsification or destruction
of records;
h. Making false statements;
i. Receiving stolen property;
j. Making false claims;
k. Obstruction of justice; or
l. Any other criminal conviction
or civil judgment that indicates a lack of business integrity pursuant to 7 CFR
12(g)(3)(ii);
(15) The authorized vendor has
5 or more sanction points currently pending, assigned, or under appeal;
(16) For retail food stores
only, the applicant vendor or authorized vendor does not provide a variety of
staple foods for sale including fresh, frozen, or canned fruits and vegetables,
fresh, frozen, or canned meats, dairy products, and grain products such as
bread, rice, and pasta;
(17) For retail stores only, the
applicant or authorized vendor does not meet the minimum stocking requirements
as stated in the WIC vendor agreement;
(18) Failure to maintain a card
acceptor device that is certified by the State’s online eWIC
processor to accept and process the eWIC card using
either a stand-beside POS terminal or an Integrated Electronic Cash Register
System;
(19) Transactions are not
performed in accordance with published operating rules, standards, and
technical requirements for WIC EBT to include the American National Standards
Institute (ANSI) “ANSI X9.93-2014” (Part 1 and Part 2) and by the United States Department of
Agriculture, Food and Nutrition Service, “WIC-Electronic Benefits Transfer (EBT)
Guidance and Resources” https://www.fns.usda.gov/wic/wic-electronic-benefits-transfer-ebt-guidance, available as noted in Appendix A;
(20) For
retail food stores only, the vendor’s monthly average volume of WIC business
over the most recent 12 months is less than $200.00 and another authorized
vendor is located within 2 miles, unless inadequate participant access is
determined as defined in He-P 3201.01(w);
(21) The department determines
that the store location was sold or had a change in ownership to circumvent a
WIC sanction in accordance with 7 CFR 246.12(g)(6);
(22) The vendor or store owner
has prior, pending, or under appeal disqualifications or sanctions by other US
Department of Agriculture, Food and Nutrition Service Programs; or
(23) The applicant vendor provides
false or misleading information on the vendor application or other required
program documents.
(c) Pending or current disqualification from or
sanction by other US Department of Agriculture, Food and Nutrition Service
Programs or failure to meet rules or standards of another state agency or local
health agency which results in suspension of license shall constitute sole
grounds for denial of authorization.
(d) A store that has been denied authorization
initially or terminated during the course of a current agreement period based
on (b) or (c) above shall not reapply for the later of the following:
(1) A minimum of 6 months from
the date of vendor receipt of the department’s notice; or
(2) Six months from the date of
an appeal decision upholding the department’s decision to deny authorization or
terminate.
Source. #4518, eff 10-28-88; EXPIRED 10-28-94
New. #6226, eff 4-24-96; ss by #7489, eff 5-11-01;
ss by #7774, eff 10-8-02; ss by #9556, eff 10-1-09; ss by #10583, eff 10-1-14; ss by #12858, eff
8-23-19
He-P 3205.02 Written Agreement.
(a)
Written agreements shall include the requirements of 7 CFR 246.12(h) and
the following:
(1) The vendor shall stock sufficient quantities
of all categories of foods approved in accordance with He-P 3203.02 and He-P
3203.03 to meet participant demands;
(2) The vendor shall maintain minimum inventory
in accordance with He-P 3203.02 and He-P 3203.03; and
(3) The vendor shall:
a. Provide only the brand, type, and size of
infant formula, and WIC-approved foods approved in the New Hampshire authorized
product list (APL) and benefits issued to the family;
b. Provide supplemental foods at the current
cash price or at less than the current price charged to other customers and
deduct the value of manufacturer or store coupons presented by eWIC cardholder from the purchase amount charged to the WIC
program;
c. Purchase all infant formula from the approved
infant formula supplier list updated and maintained by the department;
d. Clearly indicate the retail price of all WIC
approved food items, either individually on each item or at the shelf or point
of display;
e. Maintain a
functioning cash register or sales machine that imprints the date of redemption
and the products purchased on the receipt to be provided to the eWIC cardholder;
f. Provide the
department information on inventory records for foods approved in accordance
with He-P 3203.02 and He-P 3203.03 and gross food sales, upon request during
the term of the current vendor agreement and for 3 years from the expiration of
the current vendor agreement;
g. Comply with the following:
1. Title
VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.);
2. Title IX of the Education Amendments of 1972
(20 U.S.C. 1681 et seq.);
3. Section 504 of the Rehabilitation Act
of 1973 (29 U.S.C. 794);
4. Age Discrimination Act of 1975 (42 U.S.C. 6101
et seq.);
5. All provisions required by the implementing
regulations of the US Department of Agriculture;
6. Department
of Justice Enforcement Guidelines; and
7.
Food Nutrition Services (FNS) directives and guidelines to the effect
that no person shall, on the ground of race, color, national origin, age, sex,
or handicap, be excluded from participation in, be denied the benefits of, or
otherwise be subjected to discrimination under any program or activity for
which the department receives Federal financial assistance from FNS;
h. Give assurance that the vendor will
immediately take measures necessary to effectuate this agreement. If there are any violations of this
assurance, the US Department of Agriculture shall have the right to seek
judicial enforcement;
i. Provide WIC customers the same courtesies
provided to non-WIC customers;
j. Attend training on WIC program procedures as
scheduled by the department with at least one opportunity to reschedule;
k. Ensure that cashiers and all other staff are
fully trained and understand WIC program requirements;
l. Ensure that WIC-approved items sold to an eWIC cardholder are not expired;
m. Provide WIC-approved items at prices that are
fair and competitive in comparison with vendors in their peer group;
n. Be monitored by the department for compliance
with WIC program rules;
o Provide ready access to WIC redemption
information at the request of the department;
p. Not charge the department for an amount of a
specific WIC-approved food that exceeds the store’s documented inventory of
that food for a specific period of time;
q. Not charge the department for foods not
received by the eWIC cardholder;
r. Not provide cash, change, unapproved foods,
or other items in lieu of foods prescribed to WIC participants;
s. Submit a WIC vendor price survey every 6
months or upon request by the department;
t. Notify the department in writing at least 2 weeks
in advance of the vendor ceasing operations or changing ownership, name of
store, or location, thereby permitting the department to terminate the vendor
agreement in accordance with 7 CFR 246.12 (h)(3)(xvii);
u. Maintain a copy of the current NH WIC-approved
foods list at each cash register or checkout lane;
v. Not use manufacturers’ shelf tags,
promotional materials, or incentive items with the WIC acronym or logo;
w. Not offer incentive items solely to WIC participants
and not to other customers in an effort to obtain WIC business; and
x. Allow an alternate form of payment, such as a
SNAP/food stamps card, cash, credit card, or check for fruit and vegetable benefits
when the amount purchased exceeds the dollar value of the benefit.
(b)
The department shall issue a pharmacy agreement requiring pharmacies to
stock, or have the capability to immediately order and provide special infant
formula within 48 hours of request to meet participant demands.
(c)
Pursuant to changes in federal or state statutes, rules, or other
requirements, the department shall revise all current agreements, and the
amended agreements shall include the original expiration date without
prejudice.
(d)
Vendors who fail to reapply by signing and returning their new vendor agreement
prior to the expiration of their current vendor agreement shall no longer be
authorized due to an expired vendor agreement.
Source. #4518, eff 10-28-88; EXPIRED 10-28-94
New. #6226, eff 4-24-96; ss by #7489, eff 5-11-01;
ss by #7774, eff 10-8-02; ss by 8580, eff 3-11-06; ss by #9556, eff 10-1-09; ss
by #10583, eff 10-1-14; amd by #12199, eff
6-3-17;
ss by #12858, eff 8-23-19
He-P 3205.03 Periodic Review of Vendor Qualifications. The department shall conduct reviews at least
once during a current vendor’s agreement period using the selection criteria as
described in He-P 3205.01.
Source. #4518, eff 10-28-88; EXPIRED 10-28-94
New. #6226, eff 4-24-96; ss by #7489, eff 5-11-01;
ss by #7774, eff 10-8-02; ss by 8580, eff 3-11-06; ss by #9556, eff 10-1-09; ss
by #10583, eff 10-1-14;
ss by #12858, eff 8-23-19
He-P
3205.04 Vendor Training. The department shall provide training to
vendors pursuant to 7 CFR 246.12(i) by implementing
the following:
(a) The department shall provide vendors with
initial face-to-face training;
(b) At least one representative of the vendor
shall participate in WIC program training annually as described in (d) below;
(c) Annual training by the department shall
communicate changes in pertinent regulations, rules, and procedures and keep
vendors informed of problems and suggestions to improve food delivery;
(d) Annual training shall be provided by the
department in a variety of formats, including newsletters, videos, or
train-the-trainer formats;
(e) At least one representative of the vendor
shall participate in a face to face interactive training at least once every 3
years;
(f) At least one alternative date on which to
attend face-to-face training shall be provided to vendors;
(g) The department and local agency shall be
available for further vendor training and education as requested by the vendor
or as deemed necessary as a result of vendor monitoring activities;
(h) The vendor shall notify the department and
request additional training if, in the opinion of the owner or manager, vendor
staff does not adequately understand WIC procedures; and
(i) Mandatory training shall be deemed necessary
by the department as a result of repeated vendor violations or as a result of
vendor monitoring activities.
Source. #4518, eff 10-28-88; EXPIRED 10-28-94
New. #6226, eff 4-24-96; ss by #7489, eff 5-11-01;
ss by #7774, eff 10-8-02; ss by 8580, eff 3-11-06; ss by #9556, eff 10-1-09; ss
by #10583, eff 10-1-14; ss by #12858, eff 8-23-19
PART He-P 3206 VENDOR
MONITORING
He-P 3206.01 Types of Vendor Monitoring.
(a) Food benefits presented for payment shall be
audited for the following:
(1) Food benefit costs in
relation to the vendor’s reported food prices;
(2) Foods received by an eWIC cardholder;
(3) Adherence to state and
federal regulations and rules; and
(4) Other such factors as
determined by individual circumstances including risk factors as described in
(d) below.
(b) Department staff shall annually monitor a
representative selection of authorized vendors to survey WIC operations and to
take corrective action as needed in accordance with 7 CFR 246.12(j).
(c) Vendors who meet one or more of the risk
factors identified in (d) below shall be reviewed for continued authorization
or sanctioned in accordance with He-P 3207.03.
(d) Risk factors shall include one or more of the
following:
(1) Recurring written or verbal
complaints by participant(s) or local agency representatives;
(2) Specific written or verbal
complaints of category II violations as specified in He-P 3207.03(d) or
category III violations as specified in He-P 3207.03(f) or violations listed
under He-P 3207.03(h);
(3) Food costs that are
inconsistent with or above the vendor’s most recently transacted prices and peer
group;
(4) Vendors whose annual
revenue from sales of WIC-approved food meets the “above 50 percent” threshold,
as defined in He-P 3201.01(a);
(5) Changes in patterns of
program participation including volume or costs of food benefits redeemed and participant
usage;
(6) Designation as a high risk
vendor by the US Department of Agriculture, Food and Nutrition Service; and
(7) Recurring incidence of
non-compliance with program rules and federal regulations.
Source. #4518, eff 10-28-88; EXPIRED 10-28-94
New. #6226, eff 4-24-96; ss by #7489, eff 5-11-01;
ss by #7774, eff 10-8-02; ss by #8580, eff 3-11-06; ss by #9556, eff 10-1-09;
ss by #10583, eff 10-1-14;
ss by #12858, eff 8-23-19
He-P
3206.02 Monitoring Procedures. The department shall tailor monitoring
procedures to each vendor’s compliance history by including one or more of the following
in accordance with past violations to ensure current compliance with He-P 3200:
(a) Review of vendor participation, transaction
history, and related correspondence;
(b) Overt or covert observation of food benefit
redemption procedures;
(c) Interviews with vendor staff involved with
WIC operations;
(d) Review of vendor WIC-approved food shelf or
point of display prices including later comparison to food benefits
subsequently redeemed;
(e) Review of shelf tags or other promotional
material with the WIC acronym or logo;
(f) Review of gross food sales information or
supplier records;
(g) Review of physical inventory and inventory
records, including comparison to quantities of foods purchased at retailer
location;
(h) Participant contact to verify purchases;
(i) Covert purchases by the department or
representatives to verify compliance with WIC procedures; and
(j) Coordination with the US Department of
Agriculture, Food and Nutrition Service.
Source. #4518, eff 10-28-88; EXPIRED 10-28-94
New. #6226, eff 4-24-96; ss by #7489, eff 5-11-01;
ss by #7774, eff 10-8-02; ss by #8580, eff 3-11-06; ss by #9556, eff 10-1-09;
ss by #10583, eff 10-1-14;
ss by #12858, eff 8-23-19
PART He-P
3207 SANCTIONS
He-P 3207.01 Local Agencies. The department shall disqualify a local
agency under the criteria specified in 7 CFR 246.5(e).
Source. #4518, eff 10-28-88; EXPIRED 10-28-94
New. #6226, eff 4-24-96; ss by #7489, eff 5-11-01;
ss by #7774, eff 10-8-02; ss by #8580, eff 3-11-06; ss by #9556, eff 10-1-09;
ss by #10583, eff 10-1-14; ss by #11003, eff
12-23-15; ss by #12858, eff 8-23-19
(a)
Participant sanctions shall be as follows:
(1) All periods of suspension, termination, or
disqualification shall commence with the next one-month benefit issuance
following notice to the participant provided that the food package for that
month will be prorated in accordance with these rules should the next set of
food benefits be provided during the notice period;
(2) If a period of suspension exceeds the
expiration of the current certification period, the participant shall be disqualified
from reapplication until the period of suspension has been completed;
(3) The actions of a participant, a parent, or
caretaker of an infant or child participant, a proxy, or an eWIC
cardholder shall be binding on the participant in the determination of
violations and imposition of sanctions;
(4) Sanctions shall only be imposed on those
participants for whom the evidence supports the sanction and not to all
participating family members, even though the violations might have been
committed with food benefits issued to one member;
(5) When more than one violation is involved, the
sanction shall be based on the highest category violation;
(6) Excluding (h) and (i)
below, if a local agency competent professional authority submits a
recommendation stating that the imposition of the disqualification would create
an extreme nutritional hardship for the participant, the department shall waive
a disqualification provided such waiver does not conflict with RSA 132:12-a,
II;
(7) The competent professional authority’s
recommendation described in (a)(6) above shall be made in writing to the department;
(8) The department shall grant or deny a waiver,
requested in accordance with (a)(6) and (a)(7) above, within 15 days; and
(9) When a waiver has been requested, sanctions
shall not be imposed pending waiver decision.
(b)
Category I violations shall include actions related to misuse of program
benefits or disruptive participant behavior such as:
(1) Failure to follow proper redemption
procedures such as:
a. Attempting to purchase WIC food benefits
without an eWIC card present; or
b. Attempting to purchase or purchasing non-WIC
approved benefit or foods not available on the family’s benefit list; and
(2) Behavior within a store or WIC clinic that is
disruptive but not abusive or threatening.
(c) Category I violations shall be subject to the
following sanctions:
(1) Written warning for the first occurrence
within a 12-month period, unless a violation of Category II (d)(1) below for
abusive behavior has been issued within a 12-month period, then (e)(2) below
shall be implemented;
(2) A one-month suspension for the second
occurrence within a 12-month period following warning;
(3) A 3-month disqualification for the third
occurrence within a 12-month period following a one-month suspension for the
second occurrence; and
(4) A participant disqualified for a Category I
violation but for whom disqualification has been waived in accordance with
(a)(6) and (a)(7) above shall be issued food benefits on a monthly basis for a
3-month period beginning at the next food benefit pickup or certification.
(d)
Category II violations shall include actions related to more serious
misuse of program benefits or abusive participant behavior such as:
(1) Abusive or threatening behavior that includes,
for example, swearing, hitting, or threatening over the phone, within a store,
or at a WIC clinic, that is directed towards WIC staff, retail vendors, or
other WIC participants; and
(2) Purchasing non-WIC-approved foods.
(e)
Category II violations shall be subject to the following sanctions:
(1) Written warning for the first actual or
attempted occurrence;
(2) A 3-month disqualification for any subsequent
actual or attempted occurrence within a 12-month period following warning; and
(3) A participant disqualified for a Category II
violation, but for whom disqualification has been waived in accordance with
(a)(6) and (a)(7) above shall be issued food benefits on a monthly basis for a
3-month period beginning at the next food benefit pickup or certification.
(f)
Category III violations shall include actions related to fraud or abuse
of the WIC program such as:
(1) Misrepresentation of eligibility for program
benefits;
(2) Purchase of non-food items;
(3) Purchase of alcohol or tobacco products;
(4) Exchange of WIC benefits for cash or credit
from retail vendors;
(5) Sale, attempted sale, or exchange of WIC
foods, WIC formula, or an eWIC card for cash, goods,
or services; and
(6) Returning WIC foods or WIC formula to
non-authorized retail store(s) for cash or store credit.
(g)
Category III violations shall be subject to the following sanctions:
(1) A 3-month disqualification for any actual or
attempted occurrence, except as allowed by (j); and
(2) A participant disqualified for a Category III
violation, but for whom disqualification has been waived in accordance with
(a)(6) and (a)(7) above, shall be issued food benefits on a monthly basis for a
3-month period beginning at the next food benefit issuance or certification.
(h)
Except as allowed by (j) below, the department shall disqualify a
participant for one year in accordance with 7 CFR 246.12(u)(2) when:
(1) There is dual participation as defined in 7
CFR 246.2;
(2) The department determines that program
benefits have been obtained or disposed of improperly and these benefits total more
than $100.00; or
(3) There is a second or subsequent demand for
repayment of any amount.
(i) The department shall collect improperly
obtained benefits when there is a loss of funds as follows:
(1) In accordance with 7 CFR 246.23(c)(1), the
department shall demand repayment, in writing, from the participant or parent
or caretaker of an infant or child participant equal to the full value of these
benefits;
(2) The department shall issue a second demand
for repayment if full restitution is not made or a repayment schedule is not
agreed upon within 30 days of receipt of the demand for repayment as described
in (i)(1) above; and
(3) If no written or oral response has been
received from the participant or parent or caretaker of an infant or child participant
after the second demand for repayment as described in (i)(2)
above, the department shall refer the matter to the New Hampshire department of
justice.
(j)
The department shall permit the participant to continue participation in
lieu of a mandatory disqualification when:
(1) Full restitution is made within 30 days;
(2) A payment plan is agreed to within 30 days of
receipt of the letter demanding repayment; or
(3) For participants under the age of 18 and
infant and child participants, the department approves proxies.
(k)
If full restitution is made or a repayment schedule is agreed upon
before the end of a mandatory disqualification period as described in (j)
above, the department shall allow a disqualified participant to reapply for the
program.
(l)
Failure to make full and timely payment, as agreed upon in (j) or (k) above,
shall result in disqualification for the remaining disqualification period
established in the original disqualification notice.
Source. #4518, eff 10-28-88; EXPIRED 10-28-94
New. #6226, eff 4-24-96; ss by #7489, eff 5-11-01;
ss by #7774, eff 10-8-02; ss by #8580, eff 3-11-06; ss by #9556, eff 10-1-09;
ss by #10583, eff 10-1-14; ss by #11003, eff
12-23-15;
ss by #12858, eff 8-23-19
(a)
Vendor investigations shall include the following:
(1) In accordance with 7 CFR 246.12(l)(1)(xii),
if the department is investigating an allegation that a vendor has committed at
least one violation as described in (h) below, and if during that investigation
the department verifies that the vendor has committed a less serious violation
or violations set forth in (b)–(j) below, the department shall:
a. Not provide
the vendor with warning or impose sanction points for the less serious
violation or violations listed in (b)–(g) below prior to the completion of the
single investigation;
b. Include in the notice of proposed
disqualification all violations found in the course of the single investigation
and the vendor’s opportunity to request an administrative hearing; and
c. Include in the notice of proposed
disqualification that the vendor shall be disqualified for the most serious
federally mandated violation if at the conclusion of the single investigation
the department determines that the vendor has committed a violation set forth
in (h) below;
(2) Violations alleged and sanction points issued
by the department shall be subject to appeal by the vendor in accordance with
He-P 3208, He-C 200 and 7 CFR 246.18;
(3) The department shall provide written notice
of warning of initial violation for violations requiring a pattern of
occurrences in order to impose a sanction prior to documenting another
violation unless the department determines that notifying the vendor will
compromise an investigation as described in (a)(1) above;
(4) Except for those violations committed in
accordance with (a)(1) above, the department shall:
a. Issue sanction points in accordance with
violations listed in (b)–(j) below; and
b. Notify the vendor in writing of the
imposition of sanctions or the assignment of sanction points and the specific
violation(s) for which they were assigned;
(5) Except for violations as listed in (h)–(i) below the department shall apply the period of vendor
disqualification in accordance with violation category description in (b)–(g)
below to apply sanction points and retention of these points;
(6) When a vendor has been assigned sanction
points, the following shall apply:
a. When a vendor has accumulated 6 or more
sanction points, the department shall disqualify that vendor from participation
as a WIC vendor;
b. Sanction points shall be assigned for each
Category II and III violation;
c. Sanction points shall be cumulative regardless
of the category;
d. The department shall disqualify a vendor from
participation as a WIC vendor for a period of one calendar month for each
sanction point as stated in (a)(6)a. above;
and
e. The sanction points shall be retained on the
vendor’s record in accordance with (b)–(j) below;
(7) Vendors may appeal or request an
administrative hearing in accordance with He-P 3208, He-C 200, and 7 CFR
246.18;
(8) In accordance with 7 CFR 246.12(l)(1)(viii),
the department shall not accept voluntary termination of the vendor agreement
or use non-renewal of the vendor agreement in lieu of disqualification, but
shall enter the disqualification on the record;
(9) Disqualification shall include terminating
any current vendor agreement;
(10) Vendors who are disqualified for any reason
shall be required to reapply in writing;
(11) A previously disqualified vendor who is
reauthorized within one year of the end of the period of disqualification shall
be assigned 3 sanction points to be retained for a period of 12 months
following the date of reauthorization;
(12) Prior to imposing
a disqualification, the department shall determine whether the disqualification
would result in inadequate participant access;
(13) With the exception of (a)(14) below, when the
department determines, in accordance with (a)(12) above, that a
disqualification of a vendor would result in inadequate participant access, the
department shall impose a civil money penalty in lieu of disqualification as
allowed by 7 CFR 246.12(l)(l)(vii);
(14) A civil money penalty shall not be imposed by
the department in lieu of disqualification when the vendor has violated (h)(1)
below, or violated (h)(2)–(h)(4) for a pattern of 3 incidences or more within a
12 month period;
(15) In accordance with 7 CFR 246.12(l)(1)(x), the
amount of a civil money penalty shall equal 10% of the average monthly WIC
redemptions for the most recent 6 month period multiplied by the number of
months for which the vendor would have been disqualified;
(16) The civil money penalty issued in accordance
with (a)(15) above shall not exceed the amount specified by the Secretary of
Agriculture in 7 CFR 3.91(b)(3)(v) for each violation;
(17) In accordance with 7 CFR 246.12(l)(1)(x)(C),
if multiple violations are revealed by a single investigation, the department
shall impose a civil money penalty, not to exceed $ the amount specified by the
Secretary of Agriculture in 7 CFR 3.91(b)(3)(v) if disqualification would
result in inadequate participant access;
(18) If a vendor does not fully pay a civil money
penalty or an unauthorized costs claim within 30 days of the notice, the vendor
shall be disqualified:
a. For the
length of the disqualification corresponding to the violation for which the
civil money penalty was assessed; or
b. For a period
corresponding to the most serious violation in cases where a mandatory sanction
included the imposition of multiple civil money penalties as a result of a
single investigation;
(19) When a vendor, who had previously been assessed
a sanction based on a violation as listed in (h)(2)–(h)(4) below, receives
another sanction based on having committed the same or other violation as
listed in the same section, the department shall double the sanction for the
second violation;
(20) Civil money penalties shall only be doubled
up to the amount specified by the Secretary of Agriculture in 7 CFR
3.91(b)(3)(v)as limited by (a)(15) through (a)(18) above;
(21) When a vendor, who had previously been assessed
2 sanctions based on violations as listed in (h)(2)–(h)(4) below, receives
another sanction based on having committed the same or other violations as
listed in (h)(2)–(h)(4) below, the department shall double the sanction for the
third violation;
(22) In accordance with 7 CFR 246.12(l)(1)(vi),
the department shall not impose a civil money penalty in lieu of
disqualification for committing a third violation even if inadequate
participant access would result;
(23) The department shall treat a fourth or
subsequent violation in the same manner as the third except that the sanction
shall be doubled; and
(24) Money received by the department as a result
of civil money penalties assessed against a vendor shall be considered program
income in accordance with 7 CFR 246.15(b).
(b)
Category I violations shall consist of the following:
(1) Failure to submit inventory and price
information requested by the department within 30 days;
(2) Requiring participants to purchase a specific
brand of an approved food when more than one approved brand is available;
(3) Failure to provide promotional specials or
accept manufacturer or store coupons for WIC purchases, except that cash-only
promotions may be denied to participants if denied to other non-cash paying
customers;
(4) Failure to make staff available for training
in program rules and procedures;
(5) Failure to clearly indicate the retail price
of all WIC-approved items, either individually on each item or at the shelf or
point of display;
(6) Providing WIC-approved food during a WIC transaction
that is beyond the expiration or last sell date imprinted on the product
packaging by the product’s manufacturer;
(7) Failure to train all employees who handle WIC
transactions and to ensure their knowledge regarding WIC program procedures set
forth in training materials and manuals provided by the department;
(8) Failure to follow proper redemption
procedures;
(9) Asking for a eWIC
cardholder identification to complete an eWIC
transaction;
(10) Failure to provide the WIC cardholder with a receipt
at the end of the transaction containing required receipt elements pursuant to
section 5.5 of the United States Department of Agriculture, Food and Nutrition
Service “Operating Rules Women, Infants and Children (WIC) Electronic Benefits
Transfer (EBT)” (September 2014) https://fns-prod.azureedge.net/sites/default/files/wic/WIC-EBT-Operating-Rules-September-2014.pdf,
available as noted in Appendix A; and
(11) Failure to provide the WIC cardholders with a
balance receipt showing the current available benefit balance upon request
without requiring a purchase to be made.
(c)
Category I violations shall accrue 2 points per violation to be retained
for 12 months.
(d)
Category II violations shall consist of the following:
(1) Contacting participants in an attempt to have
them return to the store to fix a vendor error or to seek reimbursement for
food costs not paid by the department;
(2) Accepting the return of items purchased with
a WIC food benefit for cash or credit towards other purchases;
(3) Requiring participants to use special
checkout lanes;
(4) Substituting a WIC approved UPC or PLU for a
non-WIC approved UPC or PLU during an eWIC
transaction;
(5) Failure to allow department or local agency
representatives to complete on-site monitoring;
(6) Failure to maintain the minimum stock of
WIC-approved foods;
(7) Asking for or entering a cardholder’s PIN
number, unless the cardholder has requested assistance;
(8) Failure to keep all WIC cardholder information
confidential;
(9) Failure to ensure the current New Hampshire
APL/PLU is uploaded in the store’s POS system and is being used for eWIC transactions;
(10) Charging the cardholder a fee either
directly, or indirectly, arising out of or associated with operating, maintaining,
or processing eWIC card transactions;
(11) Failure to provide infant formula within
forty-eight (48) hours of request by a WIC cardholder; and
(12) Scanning a UPC code as a substitute,
replacement, or scanning a UPC code that is not affixed to the product, such as
a UPC codebook or reference sheet.
(e)
Category II violations shall accrue 3 points per violation to be
retained for 12 months.
(f)
A Category III violation shall consist of a failure to provide access to
redeemed eWIC transaction information or store
inventory records upon request.
(g) Category III violations shall
accrue 12 points per violation and result in a one-year disqualification.
(h)
Federally mandated sanctions shall include:
(1) A vendor convicted in court for the crime of
trafficking in food benefits or for selling firearms, ammunition, explosives,
or controlled substances, as defined in section 102 of the Controlled
Substances Act, 21 U.S.C. 802, in exchange for food benefits shall be
permanently disqualified from program participation, effective on the date of
receipt of the notice of disqualification;
(2) A vendor shall be disqualified from program
participation for 6 years for a single incidence of buying or selling food benefits
for cash trafficking or a single incidence of selling firearms, ammunition,
explosives, or controlled substances as defined in section 102 of the
Controlled Substances Act, 21 U.S.C 802, in exchange for food benefits;
(3) A vendor shall be disqualified for 3 years
for:
a. A single incidence
of the sale of alcohol or alcoholic beverages or tobacco products in exchange
for food benefits; or
b. A pattern of
3 or more incidences within a 12-month period of:
1. Claiming
reimbursement for the sale of an amount of a specific supplemental food item
that exceeds the vendor’s documented inventory;
2. Charging the
department more for an approved supplemental food than non-WIC customers or
charging the department more than the current shelf price permitted under the
vendor agreement;
3. Receiving,
transacting, or redeeming food benefits outside authorized channels, including
the use of an unauthorized vendor or an unauthorized person;
4. Charging the
department for supplemental food not received by the participant; or
5. Providing credit
or non-food items, other than those listed in (h)(1), (h)(2) and (h)(3)a. above, in exchange for food benefits;
(4) A vendor shall be disqualified for one year
for a pattern of 3 or more incidences within a 12 month period of providing
unapproved food items in exchange for food benefits, including charging for
supplemental food provided in excess of those listed on the food benefit;
(5) In accordance with 7 CFR 276.12(l)(1)(vii) a
vendor who has been disqualified from SNAP shall:
a. Be disqualified from WIC program
participation for the same length of time as the food stamp program
disqualification; and
b. Not appeal the WIC program disqualification
to federal administrative or judicial tribunals;
(6) A vendor who has been assessed a SNAP civil money
penalty for hardship in lieu of disqualification from SNAP shall be
disqualified from WIC program participation, the length of which shall
correspond to the period for which the vendor would otherwise have been
disqualified in SNAP; and
(7) In accordance with
7 CFR 246.12(l)(2)(ii)B., if the department determines that disqualification of
the vendor for (h)(6) above would result in inadequate participant access, the
vendor shall not be disqualified and a civil money penalty shall not be
imposed.
(i) Failure to meet rules or standards of another
New Hampshire state agency or New Hampshire health agency which results in
suspension of license shall result in a disqualification period not to exceed
the federal limit as cited in 7 CFR 246.12(l)(2)(iii) of one year in length and
remain in effect until such rules or standards are met and license reinstated.
(j)
A vendor who is disqualified from participation in another program
administered by the state shall be disqualified for a period not exceeding one
year from program participation for an equal number of months as the other
program disqualification.
Source. #4518, eff 10-28-88; EXPIRED 10-28-94
New. #6226, eff 4-24-96; ss by #7489, eff 5-11-01;
ss by #7774, eff 10-8-02; ss by #8580, eff 3-11-06; ss by #9556, eff 10-1-09;
ss by #10583, eff 10-1-14;
ss by #12858, eff 8-23-19
PART He-P
3208 NOTICES AND APPEAL
He-P 3208.01 Local Agencies.
(a) The administrative appeal process for local
agencies shall comply with 7 CFR 246.18 and the administrative appeal process
as described in He-C 200.
(b) In accordance with 7 CFR 246.18(a)(1)(i), a full administrative appeal shall be provided for the
following, if an appeal is requested:
(1) The denial of an
application for authorization;
(2) A disqualification during
the course of a contract period; and
(3) Any other adverse action
taken by the department in relation to an agency’s authorization, with the
exception of the provisions found in (c) below.
(c) In accordance with 7 CFR 246.18(a)(3)(ii), the
following shall not be subject to administrative appeal:
(1) Expiration of the local
agency agreement; and
(2) Denial of a local agency’s
application if the department’s local agency selection is subject to the procurement
procedures applicable to the department.
(d) In accordance with 7 CFR 246.18(a)(3)(iii),
the department shall make denials of local agency applications effective
immediately.
(e) Except as described in (f) below, the local
agency shall have 30 days from receipt of written notification from the
department to request an administrative appeal on a proposed adverse action.
(f) The local agency shall have 60 days from
receipt of written notification from the department to request an
administrative appeal on a proposed disqualification.
(g) Except as allowed by (d) above, the
department shall make adverse actions effective:
(1) No earlier than 60 days and
no later than 90 days after date of notice of adverse action; or
(2) When the local agency has
requested an administrative appeal in accordance with (e) and (f) above, on the
date the local agency receives the written administrative appeal decision.
(h) In accordance with 7 CFR 246.18(b)(4), local
agencies shall have at least one opportunity to reschedule a previously scheduled
hearing. In doing so, the local agency shall
waive the time limits outlined in (g) above.
(i) Requesting an administrative appeal for any
proposed adverse action shall not relieve the local agency from the
responsibility for continuing compliance with the terms of the written
agreement with the department.
Source. #4518, eff 10-28-88; EXPIRED 10-28-94
New. #6226, eff 4-24-96; ss by #7489, eff 5-11-01;
ss by #7774, eff 10-8-02; ss by #8580, eff 3-11-06; ss by #9556, eff 10-1-09;
ss by #10583, eff 10-1-14; ss by #12858, eff 8-23-19
He-P
3208.02 Participants.
(a) Administrative appeal procedures for
participants shall comply with 7 CFR 246.9 and He-C 200.
(b) Participants shall have 60 days from the date
the department mails or personally serves the notice of proposed adverse action
to request an administrative appeal.
(c) The adverse action shall become final after
60 days if the participant fails to request an appeal.
(d) Notice of proposed adverse action shall be
sent to or made at the most recent address provided by the participant.
Source. #4518, eff 10-28-88; EXPIRED 10-28-94
New. #6226, eff 4-24-96; ss by #7489, eff 5-11-01;
ss by #7774, eff 10-8-02; ss by #8580, eff 3-11-06; ss by #9556, eff 10-1-09;
ss by #10583, eff 10-1-14; ss by #12858, eff 8-23-19
He-P 3208.03 Vendors.
(a) Administrative appeal procedures for vendors shall
comply with the administrative review process as described in 7 CFR 246.18 and
the administrative appeal process as described in He-C 200.
(b) In accordance with 7 CFR 246.18(a)(2), except
for disqualifications based on violations described in He-P 3207.03(h)(1) which
shall become effective within 15 days of receipt of the notice of adverse
action, the vendor shall be provided 15 days to request an administrative
appeal after receipt of the notice.
(c) Disqualification of a vendor from SNAP in
accordance with 7 CFR 246.12(l)(1)(vii) shall result in disqualification from
the WIC program.
(d) Disqualification from the WIC program, in accordance
with (c) above, shall not be subject to federal, administrative, or judicial
appeal under WIC program rules in accordance with 7 CFR 246.12(l)(1)(vii).
(e) In accordance with 7 CFR 246.18(b)(4),
vendors shall have at least one opportunity to reschedule a previously
scheduled hearing. In doing so, the
vendor shall waive the right to a decision pursuant to the timeline in (f)
below.
(f) Within 90 days of receiving the vendor
request for an administrative appeal, the department shall provide the vendor
with a written notification of the appeal decision.
(g) In accordance with 7 CFR 246.18(a)(2) and 7
CFR 246.18(e), the sanctions shall be effective on the date the vendor receives
written notification of the appeal decision if the adverse action has not
previously taken effect.
(h) The department shall not be responsible for
losses incurred by the vendor as a result of adverse action taken by the
department.
(i) A full administrative appeal shall be provided
for the following, if an appeal is requested:
(1) Denial of authorization
based on failure to meet federal or department established vendor selection
criteria as described in He-P 3205.01;
(2) Termination of an agreement
for noncompliance or cause;
(3) Any disqualification of a vendor
by the department, including:
a. Disqualification based on
the imposition of a SNAP civil money penalty for hardship;
b. Disqualification based on a
mandatory sanction imposed by another WIC agency in another state; and
c. Disqualification based on He-P
3207.03(h)(1); and
(4) Imposition of a civil money
penalty in lieu of disqualification by the department.
(j) In accordance with 7 CFR 246.18(a)(1)(iii),
the following shall not be subject to administrative appeals:
(1) The department’s determination
of whether or not a vendor had an effective policy and program in effect to
prevent trafficking and whether the vendor was aware, had approved of, or was
involved in the violation;
(2) The validity or
appropriateness of the department’s vendor selection criteria listed in He-P
3205.01;
(3) The validity or
appropriateness of the department’s criteria for determining whether an
applicant vendor or authorized vendor’s annual revenue from sales of
WIC-approved food meets the “above 50 percent” threshold, as defined in He-P
3201.01(a);
(4) The validity or
appropriateness of the department’s participant access criteria and the
department’s inadequate participant access determinations as defined in He-P
3201.01(w) and He-P 3205.01(b)(18);
(5) WIC disqualification based
on SNAP disqualification;
(6) Expiration of the vendor
agreement; or
(7) Disputes regarding food benefit
payments and claims.
Source. #4518, eff 10-28-88; EXPIRED 10-28-94
New. #6226, eff 4-24-96; ss by #7489, eff 5-11-01;
ss by #7774, eff 10-8-02; ss by #8580, eff 3-11-06; ss by #9556, eff 10-1-09;
ss by #10583, eff 10-1-14;
ss by #12858, eff 8-23-19
APPENDIX A: Incorporation by Reference Information
Rule |
Title |
Publisher; How to Obtain; and Cost |
He-P 3205.01(b)(19) |
American National Standards Institute (ANSI) “ANSI X9.93-2014” (Part
1 and 2) |
Publisher: American National
Standards Institute (ANSI) Cost: $60.00 per part or $120.00 for the set The incorporated document is available at: https://webstore.ansi.org/standards/ascx9/ansix993set |
He-P 3205.01(b)(19) |
United States Department of Agriculture, Food and Nutrition Service “WIC-Electronic
Benefits Transfer(EBT) Guidance and Resources” |
Publisher: United States
Department of Agriculture, Food and Nutrition Service Cost: Free to the Public The incorporated document is available at: https://www.fns.usda.gov/wic/wic-electronic-benefits-transfer-ebt-guidance |
He-P 3207.03(b)(10) |
United States Department of Agriculture, Food and Nutrition Service
“Operating Rules Women, Infants and Children (WIC) Electronic Benefits
Transfer(EBT)” (September 2014) |
Publisher: United States
Department of Agriculture, Food and Nutrition Service Cost: Free to the Public The incorporated document is available at: https://fns-prod.azureedge.net/sites/default/files/wic/WIC-EBT-Operating-Rules-September-2014.pdf |
APPENDIX B
RULE |
STATUTE |
|
|
He-P
3201 |
7
CFR 246.2 and 246.7 |
He-P
3202 |
7
CFR 246.7 |
He-P
3203 |
7
CFR 246.10 |
He-P
3204 |
7
CFR 246.5 and 246.6 |
He-P
3205 |
7
CFR 246.12 and RSA 132:10-b, I |
He-P
3206 |
7
CFR 246.12 |
He-P
3207.01 |
7
CFR 246.2, 7 CFR 246.7 |
He-P
3207.02 |
7
CFR 246.5, 246.12, 246.15 and 246.23(b), and 246.23(c) |
He-P
3207.03 |
7
CFR 246.5, 246.12, 246.15 and 246.23 |
|
|