Section 60-1.12 - Fair hearings involving food vendors and local agencies where no contemporaneous monetary penalty is sought

60-1.12 Fair hearings involving food vendors and local agencies where no contemporaneous penalty is sought.

(a) A food vendor, upon request, shall be entitled to a fair hearing under this section if its application to supply supplemental foods to WIC program participants is denied, or if it is disqualified during the contract period from the WIC program for violation of its contract with the local agency or for high prices or low volume as defined in the vendor's contract and no contemporaneous monetary penalty under the authority of section 12 of the Public Health Law is sought against it. A fair hearing shall not be required when a vendor contract has expired and has not been renewed. Neither the local agency nor the department shall accept an application for WIC participation from a vendor whose contract has not been renewed, for one year from the date of the contract expiration.

(b) A local agency, upon request, shall be entitled to a fair hearing under this section if its application to serve as a local WIC agency is denied or if it is disqualified. A fair hearing shall not be required when a local agency's contract with the State agency has expired and has not been renewed.

(c) If a local agency or a food vendor is denied, or disqualified from, participation in the WIC program, such vendor or agency shall be given written notice promptly of such action, the reasons therefore, the rules and regulations governing food vendor or local agency participation in the WIC program, the right to a fair hearing, and that such hearing may be obtained by the local agency or vendor by petitioning, orally or in writing, the Director, Investigative Services Unit, Bureau of Nutrition, New York State Department of Health, Tower Building, Governor Nelson A. Rockefeller Empire State Plaza, Albany, NY 12237, (518) 474-3343 within 15 days from the date the notice of agency action is served. Failure to request a hearing within the required 15-day period will result in a waiver of the food vendor or local agency's right to a hearing.

(d) A written notice of hearing shall be sent by certified mail to the applicant and other parties involved at least 10 days prior to the scheduled date of the hearing. Such notice shall:

(1) specify the date, time and place of the hearing;

(2) state briefly the issues which are to be the subject of the hearing;

(3) explain the manner in which the fair hearing will be conducted;

(4) apprise the petitioner of its right to be represented by an attorney, to testify, present documentary evidence, produce witnesses, cross-examine adverse witnesses, and to examine prior to and during the hearing the documents and records supporting the action under appeal; and

(5) state that failure to appear at the hearing shall constitute waiver of the petitioner's right to a hearing and that an order will be issued denying or disqualifying the petitioner from participation in the WIC program.

(e) The administrative law judge, in rendering a decision on the food vendor's application for participation in the WIC program shall be bound by section 60-1.13 of this Subpart.

(f) Under this section, the burden of proof to participate or remain in the WIC program shall be on the local agency or vendor denied participation or disqualified for violations of the vendor's contract with the local agency or of this Subpart.

(g) The provisions of section 60-1.6(d) and (h) of this Subpart concerning hearings, hearing officers, and record of hearings shall apply to fair hearings for food vendors and local agencies conducted pursuant to this section.

(h) A copy of the fair hearing decision shall be sent to the petitioner, his/her attorney, if any, and other parties involved, within 60 days following the date on which the State agency received the request for a hearing.

(i) Following a hearing denying a vendor participation in the WIC program for lack of need, neither the local agency nor the department shall accept from a vendor, for at least one year from the date of the order denying participation, an application to participate in the WIC program. In cases of vendor abuse, neither the local agency nor the department shall accept an application for the period of disqualification up to a maximum of three years from the date of vendor's disqualification.

(j) Nothing in this section shall prevent the department from immediately disqualifying any vendor or local agency from participating in the WIC program provided that written notice of disqualification is given to the vendor at least 15 days before the effective date of the disqualification and to the local agency at least 60 days before the effective date of disqualification, respectively. The disqualification may not be stayed during the pendency of the hearing by the administrative law judge without the consent of the department's representative at the hearing. The disqualification shall remain in effect unless an order is issued at the conclusion of the hearing which reinstates the vendor or local agency. (k) This section shall not preclude the department from commencing a subsequent proceeding to assess a civil penalty against the vendor or the local agency pursuant to section 60-1.11 of this Subpart.

(l) This section shall not preclude the department from ordering a WIC vendor to immediately cease and desist from depositing WIC checks in the bank. If the department takes such action, it shall immediately notify the vendor. The vendor may request a hearing in the matter set forth in subdivision (c) of this section. This section shall govern the conduct of such a hearing.
 

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