SubPart 60-1 - WIC Program--Violations and Hearings Involving Applicants, Participants, Food Vendors and Local Agencies

Doc Status: 
Complete
Statutory Authority: 
Public Health Law, Sections 12, 12-a, 206

Section 60-1.1 - Definitions

Section 60-1.1 Definitions. As used in this Subpart, the following terms shall have the following meanings:

(a) Administrative law judge means a person designated by the Commissioner of Health to conduct hearings under sections 60-1.6, 60-1.11 and 60-1.12 of this Subpart. The commissioner may delegate to the Administrative Law Judge the power to render final decisions in these matters.

(b) Adverse action shall mean the imposition of monetary penalties, suspension or disqualification from, or the denial of participation in the WIC program. It shall not mean nonrenewal of a contract, the term of which has expired, nor notification to a vendor to cease and desist from depositing WIC checks in the vendor's bank account.

(c) Applicant means a person who submits an application to a local agency for its determination of his/her eligibility to receive supplemental foods under the WIC program.

(d) Categorically ineligible means not meeting the definition of pregnant women, breastfeeding women, postpartum women, or infant or child as set forth in subdivision (m) of this section.

(e) Commissioner means the Commissioner of Health of the State of New York.

(f) Conference means a meeting prior to a request for a fair hearing, between a representative of a local agency and an applicant or participant who is aggrieved by the determination or action of such agency, to discuss such determination or action.

(g) Department shall mean the New York State Department of Health.

(h) Fair hearing means the procedure under section 60-1.6 and 60-1.12 of this Subpart by which applicants, participants, food vendors and local agencies may appeal certain determinations or actions of a local agency or of the State agency.

(i) FNS means the Food and Nutrition Service of the United States Department of Agriculture.

(j) Food instrument means a WIC check, drawn on the account of the State Department of Health exchangeable for WIC-approved products.

(k) Food vendor means any establishment which accepts WIC food instruments whether contracted to do so or not.

(l) Local agency means an agency which has contracted with New York State to provide WIC benefits to participants.

(m) Participant means a person who is a pregnant woman, a breastfeeding woman for up to one year postpartum, a postpartum women up to six months following delivery, an infant under one year of age, or a child between one and five years of age, or their representative, who is receiving supplemental foods or food instruments under the WIC program.

(n) Persons with a special nutritional risk condition means pregnant women at nutritional risk as demonstrated by hematological or anthropometric measurements, or other documented nutritionally related medical conditions which demonstrate the need for supplemental foods, infants under six months of age, and members of migrant farm worker households who plan to leave the jurisdiction of the local agency.

(o) Petitioner means an applicant, participant or his/her parent or guardian, food vendor or local agency who requests a hearing from the department.

(p) Respondent means a food vendor or local agency from whom the department seeks a monetary penalty under the provisions of section 60-1.11 of this Subpart.

(q) WIC food vendor means a food vendor which has a contract in effect with a local agency to supply supplemental foods to persons receiving benefits under the WIC program.

(r) WIC program means the Special Supplemental Food Program for Women, Infants, and Children authorized by the Federal Child Nutrition Act of 1966, as amended.
 

Doc Status: 
Complete

Section 60-1.2 - Notification to applicants and participants of a right to a conference and fair hearing

60-1.2 Notification to applicants and participants of a right to a conference and fair hearing.

(a) Local agencies shall notify applicants and participants in writing at the time of application and at the time of denial of participation or disqualification from the program of the right to a conference and if there is no resolution of the issue at the conference, a fair hearing and the method by which a conference and fair hearing may be requested. For individuals who are disqualified, the notification shall be served at least 15 days prior to termination of participation.

(b) The written notification of the denial of participation or disqualification from the WIC program shall be on a form supplied or approved by the department and shall include:

(1) a description of the adverse action and the reason(s) for it;

(2) a statement indicating that the request for a conference and if there is no resolution of the issues at the conference, a fair hearing may be made verbally or in writing to the department for a fair hearing and to the local agency for a conference and may be made by the participant or applicant or other representative of same;

(3) a listing of the office locations and phone numbers where requests for a conference and fair hearing may be made;

(4) notification that the participant must request a conference within seven days and a fair hearing within 60 days from the date the notice of adverse decision is served. Failure to make a timely request for a conference shall result in a waiver of the right to a conference. Failure to make a timely request for a fair hearing shall result in a waiver of the right to a fair hearing;

(5) an explanation of the rules and regulations governing participation in the WIC program and a citation of those rules and regulations;

(6) an explanation of the purposes and procedures of fair hearings and conferences;

(7) a statement that the participant or representative may present positions or arguments at the conference and fair hearing and that a representative may be a relative, friend, legal counsel or other spokesperson; and

(8) for participants whose benefits are being terminated during the certification period, a statement that if an appeal is made within 15 days of the notification of the termination, the benefits shall continue until the fair hearing decision is made or the certification periods ends, whichever occurs first.

(c) Notification described in subdivision (a) of this section shall not be required at the end of a certification period.
 

Doc Status: 
Complete

Section 60-1.3 - Conferences for applicants and participants

60-1.3 Conferences for applicants and participants.

(a) Within seven days from the date a notice of denial of participation or disqualification is served, the aggrieved person may contact the local agency, either orally or in writing, to request a conference with a representative of the agency to discuss the determination or action of the agency, obtain an explanation of the reasons therefor, inspect any pertinent information in the agency's file and to present information to show that the agency's determination is incorrect.

(b) The local agency shall promptly, after receipt of a request for a conference, send the aggrieved person a notice containing the date, time and place of the conference and informing him/her that he/she may speak for himself/herself or be represented by an attorney, his/her parent or guardian, relative, friend or other spokesperson.

(c) The local agency shall conduct the conference at a date no later than 10 days after receipt of the request for a conference.

(d) If, as a result of a conference, the representative of the local agency finds that the information upon which the local agency based its determination or action is incorrect, or if for any other reason the representative decides that the determination or action is inappropriate, he/she may reverse or modify the local agency's determination. If, however, such representative finds that the determination or action of the agency is appropriate, such determination or action shall become effective as scheduled unless the aggrieved party requests a fair hearing from the department, whereupon the adverse action shall be stayed in appropriate cases until the fair hearing decision is rendered.

(e) The representative of the local agency shall make a decision at the conclusion of the conference and shall at that time inform the aggrieved person and the person's representative, if any, of the decision.

(f) The right to a conference shall not in any way affect the aggrieved person's right to a fair hearing.
 

Doc Status: 
Complete

Section 60-1.4 - Circumstances entitling applicants and participants to a fair hearing

60-1.4 Circumstances entitling applicants and participants to a fair hearing.

(a) The following persons shall, upon request, be entitled to a fair hearing:

(1) applicants or participants who are determined during certification procedures to be ineligible to participate in the WIC program;

(2) participants who are disqualified or terminated from the WIC program for any reason at any time after certification;

(3) applicants with a special nutritional risk condition who have not been notified of their eligibility or ineligibility for WIC program benefits within 10 days of application, and all other applicants who have not been notified within 20 days of application;

(4) persons with a special nutritional risk condition who have not been determined eligible for WIC program benefits and who have not received food instruments within 10 days of application, and all other persons determined eligible who have not received food instruments within 20 days of application; and

(5) a person aggrieved by any other adverse action affecting his/her benefits or participation in the WIC program.

(b) A person who is categorically ineligible and whose status is documented by the local agency shall not be entitled to a fair hearing.
 

Doc Status: 
Complete

Section 60-1.5 - Procedure for applicants and participants obtaining a fair hearing

60-1.5 Procedure for applicants and participants obtaining a fair hearing.

(a) Every applicant and participant aggrieved by an adverse action of a local agency may request a fair hearing by contacting, either orally or in writing, the department within 60 days from the date of service of the agency determination or adverse action. Requests for a fair hearing may be made on behalf of the applicant or participant by a parent, guardian or other representative.

(b) If a participant being disqualified from the WIC program requests a fair hearing within 15 days from the date of service of the agency determination to terminate, benefits shall be continued until the administrative law judge makes a determination or the certification period expires, whichever occurs first; provided, however, that such benefits shall not be continued when a participant is determined to be categorically ineligible, an initial certification is not granted or a certification period expires.

(c) A request for a fair hearing shall not be denied or dismissed unless:

(1) the request is not received within the required 60-day time limit provided in subdivision (a) of this section;

(2) the petitioner or his/her representative fails to appear at the scheduled date, time and place of the hearing without good cause;

(3) the petitioner or his/her representative withdraws the request for a fair hearing in writing or states for the record at the hearing that he/she wishes to withdraw;

(4) the petitioner or his/her representative cannot be located at his last known address after the request for a fair hearing is received;

(5) the petitioner has been determined to be categorically ineligible. Categorical ineligibility shall be documented and the documentation shall be maintained on file at the local agency;

(6) the petitioner has been denied participation at a previous hearing and cannot provide evidence to the local agency that circumstances have changed since the denial of WIC program eligibility;

(7) the local agency grants the relief requested by the petitioner; or

(8) the sole basis of the hearing is petitioner's request for retroactive benefits.
 

Doc Status: 
Complete

Section 60-1.6 - Fair hearings for applicants and participants

60-1.6 Fair hearings for applicants and participants.

(a) A fair hearing shall be scheduled within 21 days from the date the department receives the request for a hearing.

(b) A written notice of hearing shall be sent by certified mail to the petitioner, his/her representative, if any, and the local agency at least 10 days prior to the scheduled date of the hearing.

(c) The notice of hearing 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 the right to be represented by an attorney, parent or guardian, relative, friend or other spokesperson; to testify, present documentary evidence, advance arguments, produce witnesses, and question or refute any testimony or evidence, including an opportunity to cross-examine adverse witnesses; and to examine prior to and during the hearing the documents and records supporting the determination or action under appeal;

(5) state that failure to appear at the hearing shall constitute waiver of the petitioner's right to a hearing; and

(6) as appropriate pursuant to sections 60-1.2(b)(8) and 60-1.5(b) of this Subpart, advise a petitioner participant that WIC program benefits may be continued pending the fair hearing decision.

(d) A fair hearing shall be conducted under the provisions of Part 51 of this Title by an administrative law judge who has not been involved previously in any way with the matter under appeal. The administrative law judge may order, when relevant and necessary, an independent medical assessment or professional evaluation.

(e) A copy of the fair hearing decision shall be sent to the petitioner, his/her representative, if any, and the local agency within 45 days from the date on which the request for the hearing was received by the department, except that such time may be extended if the petitioner has requested and been granted a postponement of his/her hearing. A fair hearing decision unfavorable to the petitioner shall contain a statement informing the petitioner of the availability of judicial review as provided in the Civil Practice Law and Rules.

(f) WIC program benefits shall not continue during an appeal by a denied applicant or participant of an adverse hearing decision made by an administrative law judge or the commissioner. Retroactive benefits may not be ordered as a result of the fair hearing.

(g) When a local agency receives a copy of a fair hearing decision, it shall comply with the decision immediately and shall notify the department in writing of such compliance. The department shall review the compliance statement to assure that the local agency has complied correctly.

(h) A record of each fair hearing shall be maintained as provided in Part 51 of this Title and shall be retained for at least three years from the date of the decision. The record of each fair hearing shall be available for public inspection and copying.
 

Doc Status: 
Complete

Section 60-1.7 - Participant violations of the WIC program and penalties

60-1.7 Participant violations of the WIC program and penalties.

(a) A person who applies for or is receiving WIC benefits shall be considered in violation of the WIC program if that person or any individual acting on his or her behalf:

(1) knowingly and deliberately misrepresents circumstances to obtain benefits;

(2) sells supplemental foods or food instruments to, or exchanges them with, other individuals or entities;

(3) receives from food vendors unauthorized food, cash or credit towards purchase of unauthorized food or other items of value in lieu of authorized supplemental foods;

(4) physically or verbally abuses or threatens physical abuse of State, local agency, food vendor staff or other participants;

(5) uses WIC food instruments outside of valid dates;

(6) participates in the WIC program with more than one local agency;

(7) alters the food package quantity or period of issue on the check;

(8) falsely reports food instruments lost or stolen;

(9) steals WIC food instruments;

(10) redeems WIC food instruments at non-WIC food vendors; or

(11) countersigns the check before the food price is entered on the check.

(b) When a participant or an individual acting on the participant's behalf is found in violation of the WIC program, the department or local agency shall determine what penalty, if any shall be imposed, depending on the severity of the violation. One or more of the following penalties may be imposed:

(1) a warning to discontinue the violation;

(2) disqualification for up to three months;

(3) a requirement to reimburse the State agency for the amount of food instruments which were used as described in subdivision (a) of this section; and/or

(4) other sanctions as may be defined by the department.

(c) Prior to imposition of a penalty, other than a warning, the local agency must notify the participant of the intended adverse action and the right to a fair hearing as provided in sections 60-1.2, 60-1.4 and 60-1.5 of this Subpart.

(d) The imposition of penalties pursuant to this section does not preclude any other penalties provided for under State, Federal or local law.
 

Doc Status: 
Complete

Section 60-1.8 - Food vendor violations of the WIC program

60-1.8 Food vendor violations of the WIC program.

(a) Any food vendor, who, in the course of a transaction involving a food instrument (WIC check) commits any of the following acts shall be liable for disqualification from the WIC program for a period of up to three years in addition to being liable for civil penalties of up to $1,000 per violation under the authority of section 12 of the Public Health Law:

(1) the vendor charges the State or local agency for foods not received by the participant;

(2) the vendor charges the State or local agency prices in excess of those charged to other customers;

(3) the vendor provides cash in exchange for WIC checks;

(4) the vendor provides cash for the return of items purchased with a WIC check;

(5) the vendor fails to verify the signature on the customer's WIC identification card against the required signature on the customer's WIC check for all foods delivered or sold to the customer;

(6) the vendor provides unwholesome items in exchange for a WIC check, such as but not limited to, items provided past their expiration date and/or spoiled foods;

(7) the vendor provides unauthorized items and/or items not specified on the face of the WIC check in exchange for a WIC check;

(8) the vendor issues a document (rain check) to a person utilizing a WIC check purporting to give that person the right to buy, at a later date, a particular WIC item which the vendor does not have in stock at the time the document is issued;

(9) the vendor forges a customer's signature onto a WIC check;

(10) the vendor stamps a WIC vendor number onto a WIC check redeemed by any other vendor;

(11) the vendor accepts WIC checks without being a WIC food vendor;

(12) the vendor discriminates against or harasses any person utilizing a WIC check;

(13) the vendor fails to ensure that the amount of purchase is written in the space provided on the WIC check in the customer's presence at the time of purchase;

(14) the vendor accepts WIC checks before or after the dates indicated on the checks during which the checks are valid;

(15) the vendor fails to maintain, for a minimum of three years, all invoices and purchase slips for WIC food items, for inspection by authorized Federal, State or local agencies;

(16) the vendor fails to allow unobstructed examination of all WIC food instruments, invoices and purchase slips for WIC food items;

(17) the vendor fails to have invoices and purchase slips for WIC food items equal to the type and volume of WIC food sold;

(18) the vendor fails to surrender WIC stamps upon disqualification or suspension;

(19) the vendor fails to maintain, on premises of the authorized location, a State-issued WIC vendor authorization stamp; or

(20) the vendor deposits WIC checks into a bank account different than the vendor's sole authorized bank account listed on the vendor's contract; or

(21) the vendor stamps a check that was accepted at a location other than the sole authorized location contained in the vendor's contract.

(b) A food vendor shall be liable for any violation of subdivision (a) of this section by his/her employees.

(c) A food vendor who accepts or redeems WIC checks in violation of this section, in addition to being liable for any civil penalties assessed pursuant to section 12 of the Public Health Law, may be required to reimburse the State agency for funds obtained as a result of the transactions.

(d) The imposition of civil penalties pursuant to this section, does not preclude the imposition of any fines or other penalties prescribed by applicable State, Federal or local law.
 

Doc Status: 
Complete

Section 60-1.9 - Local agency violation of the WIC program

60-1.9 Local agency violation of the WIC program.

(a) A local agency shall be considered in violation of the WIC program if it:

(1) fails to submit to the department, obtain approval for, or fully implement a nutrition education plan;

(2) diverts money budgeted for administrative expenses to nonbudgeted administrative items;

(3) fails to monitor food vendors under contract at a frequency prescribed by the department;

(4) fails to submit reports as required by the department;

(5) fails to contract with a food vendor when directed to do so by the department; or

(6) otherwise does not comply with the terms of its agreement with the department.

(b) When a local agency is found in violation of the WIC program, it may be subject to one or more of the following penalties:

(1) reduction of reimbursement by 1/6 of the administrative budget for failure to fulfill its contractual responsibilities for nutrition education;

(2) reduction of reimbursement for costs of activities which were not authorized under the terms of the agreement with the State agency;

(3) a civil penalty of up to $1,000 per violation, pursuant to section 12 of the Public Health Law;

(4) termination of the agreement with the department; or

(5) any other penalty prescribed by the Public Health Law.

(c) No local agency may be disqualified from participation except on 60 days' written notice of the disqualification.
 

Doc Status: 
Complete

Section 60-1.10 - Conferences for food vendors

60-1.10 Conferences for food vendors.

(a) If a local agency has reasonable grounds for believing that a participating vendor has committed an abuse of the WIC program, it shall send written notice to the department advising it of its findings together with any documentation.

(b) Upon receipt of the notice of suspected abuse, or on its own initiative, the department shall investigate the matter. If the department determines that an abuse has been committed and that a conference is advisable, it shall send a written notice to the vendor of the following:

(1) the specific abuse;

(2) that the vendor may have a conference with a designee of the commissioner at a specified date, time and place to discuss the matter;

(3) that the vendor may be represented by legal counsel at the conference;

(4) that the vendor will be given an explanation of the charges and an opportunity to refute, explain or acknowledge the alleged abuse;

(5) that upon either the department's or the vendor's request a verbatim record or tape recording of the conference will be maintained; and

(6) that if the vendor fails to appear at the conference or to respond in writing to the notice of conference within 15 days to arrange for an alternate date, the vendor will be disqualified from the program. A copy of the notice of conference shall be sent to the local agency together with a statement that a representative of such agency may participate in the conference.

(c) The matter may be resolved at the conference if the designee of the commissioner and the vendor agree that an abuse was not committed or that it was committed and both parties agree upon the corrective action to be taken and/or penalties to be assessed.

(d) If the matter is not resolved at the conference, the commissioner or his designee shall send a written notice to the food vendor informing the vendor of the following:

(1) it has been determined that the specific abuse charged was committed;

(2) that the vendor is disqualified from the WIC program, effective on a specific date for a specified period of time not exceeding three years;

(3) that the vendor has a right to request a fair hearing by contacting, 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 of the date of the notice of suspension; and

(4) if a fair hearing is requested, the commissioner may stay the suspension until a decision is rendered after the hearing.
 

Doc Status: 
Complete

Section 60-1.11 - Hearings involving food vendors for violations of section 60-1.8 of this Subpart and local agencies for violation of section 60-1.9 of this Subpart where a monetary penalty is sought

60-1.11 Hearings involving food vendors for violations of section 60-1.8 of this Subpart and local agencies for violation of section 60-1.9 of this Subpart where a monetary penalty is sought.

(a) Any food vendor or local agency which the department seeks to fine or fine and disqualify from the WIC program for violations of section 60-1.8 or section 60-1.9 of this Subpart shall be afforded a right to a hearing under the terms of this section. A disqualification without a contemporaneous monetary penalty is governed by the provisions of section 60-1.12.

(b) A written notice of hearing shall be sent by certified mail to the applicant and other parties involved at least 15 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 hearing will be conducted;

(4) apprise the respondent of its right to be represented by an attorney, to testify, present documentary evidence, produce witnesses, cross-examine adverse witnesses, and to examine the case record prior to the hearing; and

(5) state that failure to appear at the hearing shall constitute waiver of the respondent's right to a hearing and that a default order may be issued against the respondent, fining the respondent up to a maximum of $1,000 per violation and/or disqualifying the vendor from participating in the WIC program for up to three years and permanently terminating the local agency from participating in the WIC program.

(c) The provisions of section 60-1.6(d) and(h) of this Subpart concerning hearings, administrative law judges, and record of hearings shall apply to hearings for food vendors and local agencies under this section.

(d) A copy of the hearing decision shall be sent to the respondent, his/her attorney, if any, and other parties involved within 60 days following the date on which the department issued a notice of hearing.

(e) 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.

(f) The department has the burden of proof to establish a violation of section 60-1.8 or section 60-1.9 of this Subpart by substantial evidence.
 

Doc Status: 
Complete

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.
 

Doc Status: 
Complete

Section 60-1.13 - Vendor applicant enrollment criteria

60-1.13 Vendor applicant enrollment criteria.

(a) Any food store (excluding pharmacies) which applies for participation in the WIC program shall be enrolled via a State Health Department approved one-year expirable contract if all of the following criteria are met. If all the criteria are not met, the vendor may not be enrolled.

(1) Current and valid food stamp authorization.

(2)(i) The vendor/participant ratio in the ZIP code area of the applicant vendor is more than 75 participants per vendor, or

(ii) There is a participating WIC vendor within a 10-block or 1/2 mile walking distance of the applicant vendor who redeems more than $3,000 in WIC checks per month, or

(iii) The applicant vendor had annual total sales in the previous calendar year of more than three million dollars in New York State.

(3) If the applicant vendor has assumed ownership of a store that had been participating in the WIC program within 60 days from the date the application is made, the criteria set forth in paragraph (2) of this subdivision will not apply unless the store under the previous owner redeemed fewer than 25 checks per month.

(4) The applicant vendor shall stock WIC-acceptable foods, as determined by the New York State Department of Health, in the minimum quantities prescribed in the vendor application document at the time of enrollment.

(5) Applicant vendor's prices shall be reasonable as compared to other vendors contracted with the local agency. Reasonable shall be defined by calculating the applicant vendor's selling price of their most commonly prescribed formula check type for an infant and the two most commonly prescribed check types containing multiple foods for a woman or child. The prices that are used for these calculations should reflect the vendor's average prices for each type of item. Calculations should not be made based solely on the highest priced item. The cost of the checks should be within 10 percent of the project average for these check types as identified on the last project summary by vendor report. The project summary by vendor report identifies the project average for each check type by calculating the cost of each check type redeemed during the reporting month by vendors contracted with the applicant's local agency.

(b) Any pharmacy which applies for participation in the WIC program shall be enrolled if all the following criteria are met. Any vendor who meets these criteria should be enrolled via a State Health Department approved one-year expirable contract.

(1) There are no other pharmacies participating in the WIC program within a 1/2 mile walking distance of applicant pharmacy.

(2) The applicant pharmacy shall stock formula in the minimum quantities prescribed in the vendor application document at the time of enrollment.

(3) The applicant agrees to order and stock special formulas as requested by the local agency.

(4) The applicant's prices for formula are reasonable. Reasonable shall be defined by calculating the applicant vendor's selling price of an ITA check (eight 13-ounce cans iron-fortified concentrated formula). The total cost should be within 10 percent of the project average for this check type.

(c) The applicant vendor or pharmacy shall have reasonable hours of operation. Reasonable is defined as operating six days per week, eight hours per day.

(d) The local agency shall have the option of not contracting with any vendor who has been previously disqualified from the WIC program or who has abused the WIC program or any other government sponsored program.

(e) If there are no other available participating vendors within three miles of the applicant vendor or there is a demonstrated, documented cultural need (e.g., Kosher), the local agency may, within its discretion, admit the applicant vendor into the program without first meeting the criteria set forth in paragraphs (a) (1), (2), (3) and (5) or subdivision (b) or (c) of this section.

(f) A local agency does not have to consider a vendor's reapplication for participation in the WIC program if the vendor was denied within the past year. (g) When requested by the State or local agency, the applicant vendor has attended pre-contract training.

Effective Date: 
Wednesday, January 6, 2010
Doc Status: 
Complete