subchapter 43d – wic/nutrition
section .0100 - DEFINITIONS
10A NCAC 43D .0101 DIETETICS
10A NCAC 43D .0102 DIETITIAN
10A NCAC 43D .0103 NUTRITIONIST
10A NCAC 43D .0104 THE AMERICAN DIETETIC ASSOCIATION
10A NCAC 43D .0105 HOME ECONOMIST
10A NCAC 43D .0106 COMPETENT DIETARY PROFESSIONAL
10A NCAC 43D .0107 WIC
History Note: Authority G.S. 130A‑361;
Eff. February 1, 1976;
Readopted Eff. December 5, 1977;
Amended Eff. December 6, 1991; November 1, 1990;
Repealed Eff. October 1, 2009.
SECTION .0200 ‑ WIC PROGRAM
GENERAL INFORMATION
10A NCAC 43D .0201 DESCRIPTION
The Nutrition Services Branch is responsible for the
administration of the WIC Program in North Carolina.
History Note: Authority G.S. 130A‑361; 7 C.F.R.
246;
Eff. July 1, 1981;
Amended Eff. October 1, 2009; December 6, 1991; November
1, 1990.
10A NCAC 43D .0202 DEFINITIONS
(a) For the purposes of this Subchapter, all definitions
set forth in 7 C.F.R. Part 246.2 are hereby incorporated by reference,
including subsequent amendments and additions, with the following additions and
modifications:
(1) An "administrative appeal" is an
appeal in accordance with Section .0800 of this Subchapter through which a
local WIC agency, potential local WIC agency, authorized WIC vendor or
potential authorized WIC vendor may appeal the adverse actions listed in 7
C.F.R. 246.18(a)(1)(i), (a)(1)(ii) and (a)(3)(i).
(2) An "authorized store representative"
includes an owner, manager, assistant manager, head cashier, or chief fiscal
officer.
(3) An "authorized WIC vendor" is a
food retailer or free-standing pharmacy that has executed a currently effective
North Carolina WIC Vendor Agreement.
(4) A "chain store" is a store that
is owned or operated by a corporation, partnership, cooperative association, or
other business entity that has 20 or more stores owned or operated by the
business entity.
(5) A "fair hearing" is the informal
dispute resolution process in Section .0900 of this Subchapter through which
any individual may appeal a state or local agency action which results in a
claim against the individual for repayment of the cash value of improperly
issued benefits or results in the individual's denial of participation or
disqualification from the WIC Program. This process must be complied with
prior to requesting a contested case hearing in accordance with G.S. 150B.
(6) "FNS" means the Food and
Nutrition Service of the U.S. Department of Agriculture.
(7) "Free-standing pharmacy" means a
pharmacy that does not operate within another retail store. Free-standing
pharmacy includes free-standing pharmacies that are chain stores and
free-standing pharmacies participating under a WIC corporate agreement.
(8) The "local WIC agency" is the
local agency which enters into an agreement with the Division of Public Health
to operate the Special Supplemental Nutrition Program for Women, Infants and
Children.
(9) A "local WIC program plan" is a
written compilation of information on the local WIC agency policies concerning
program operation, including administration, nutrition education, personnel
functions, costs and other information prepared by the local WIC agency and
submitted to the Nutrition Services Branch in accordance with instructions
issued by the Branch.
(10) A "predominantly WIC vendor" is an
"above-50-percent vendor" as defined in 7 C.F.R. 246.2.
(11) "Redemption" is the process by
which a vendor deposits for payment a food instrument or cash-value voucher
transacted at that vendor and the state agency (or its financial agent) makes
payment to the vendor for the food instrument or cash-value voucher.
(12) "Shelf price" is the price a
vendor charges a non-WIC customer for a WIC supplemental food.
(13) "SNAP-eligible food sales" means "food
sales" as defined in 7 C.F.R. 246.2, which are those foods that can be
purchased with Supplemental Nutrition Assistance Program ("SNAP")
benefits.
(14) The "state agency" is the
Nutrition Services Branch, Women's and Children's Health Section, Division of
Public Health, Department of Health and Human Services.
(15) "Store" means a food retailer or
free-standing pharmacy operating at a single, fixed location.
(16) "Supplemental food" or "WIC
supplemental food" is a food which satisfies the requirements of 10A NCAC
43D .0501.
(17) "Support costs" are clinic costs,
administrative costs, and nutrition education costs.
(18) "Transaction" is the process by
which a WIC customer tenders a food instrument or a cash-value voucher to a
vendor in exchange for authorized supplemental foods.
(19) "Vendor applicant" is a store that
has submitted an application to become an authorized WIC vendor but is not yet
authorized.
(20) A "vendor overcharge" is
intentionally or unintentionally charging more for supplemental food provided
to a WIC customer than to a non-WIC customer or charging more than the current
shelf price for supplemental food provided to a WIC customer.
(21) A "WIC corporate agreement" is a
single WIC Vendor Agreement with a corporate entity that has 20 or more stores
authorized as WIC vendors under the Agreement.
(22) "WIC customer" means a WIC
participant, parent or caretaker of an infant or child participant, proxy or
compliance investigator who tenders a food instrument or a cash-value voucher
to a vendor in exchange for WIC supplemental food.
(23) "WIC program" means the Special
Supplemental Nutrition Program for Women, Infants, and Children authorized by
42 U.S.C. 1786 of the Child Nutrition Act of 1966 as amended.
(b) A copy of 7 C.F.R. Part 246 is available for inspection
at the Department of Health and Human Services, Division of Public Health,
Women's and Children's Health Section, Nutrition Services Branch, 5601 Six
Forks Road, Raleigh, North Carolina. Copies are available at no cost from
the Supplemental Nutrition Programs Division, Food and Nutrition Service, USDA,
3101 Park Center Drive, Room 540, Alexandria, Virginia 22302 by calling (703)
305-2730 or access
http://www.fns.usda.gov/wic/lawsandregulations/WICRegulations-7CFR246.pdf.
History Note: Authority G.S. 130A-361; 42 U.S.C. 1786;
7 C.F.R. 246;
Eff. July 1, 1981;
Amended Eff. December 6, 1991; November 1, 1990; July 1,
1989;
Temporary Amendment Eff. May 17, 2000;
Amended Eff. April 1, 2001;
Temporary Amendment Eff. July 1, 2002;
Amended Eff. August 1, 2004;
Temporary Amendment Eff. July 1, 2006;
Amended Eff. February 1, 2013; October 1, 2009; April 1,
2007.
10A NCAC 43D .0203 REFERENCES
(a) The state agency shall administer the WIC program in
accordance with:
(1) 42 U.S.C. 1786; and
(2) 7 C.F.R. 246.1 through 246.28, United
States Department of Agriculture, Food and Nutrition Service, Special
Supplemental Nutrition Program for Women, Infants and Children.
(b) The documents listed in Paragraph (a) of this Rule are
available for inspection at the state agency during regular business hours.
History Note: Authority G.S. 130A‑361;
Eff. July 1, 1981;
Amended Eff. October 1, 2009; April 1, 1984; April 1,
1982.
10A NCAC 43D .0204 CONTRACT WITH FNS
(a) The Division of Public Health shall maintain the
Federal-State Special Supplemental Nutrition Program Agreement with the United
States Department of Agriculture, Food and Nutrition Service.
(b) The state agency shall prepare, submit to FNS, and
maintain the North Carolina State WIC Program Plan of Operations to fulfill the
requirements of 7 C.F.R. 246.4. This plan is available for inspection at the
state agency during business hours.
History Note: Authority G.S. 130A‑361;
Eff. July 1, 1981;
Amended Eff. October 1, 2009.
10A NCAC 43D .0205 POLICIES: GUIDELINES AND MANUALS
(a) The state agency shall promulgate policies, guidelines
and manuals to facilitate operation of the WIC Program in accordance with the
contract with FNS, the guidelines and instructions issued by FNS in policy
letters and management evaluations, and the North Carolina State WIC Program
Plan of Operations and the rules contained in this Subchapter.
(b) The policies, guidelines and manuals maintained under
(a) of this Rule are available for inspection at the state agency during
regular business hours.
History Note: Authority G.S. 130A‑361;
Eff. July 1, 1981.
10A NCAC 43D .0206 GENERAL ADMINISTRATION
History Note: Authority G.S. 130A‑361;
Eff. July 1, 1981;
Amended Eff. November 1, 1990;
Repealed Eff. October 1, 2009.
10A NCAC 43D .0207 LOCAL WIC AGENCY AGREEMENT AND BUDGET
(a) The state agency shall enter into an agreement and
negotiate a budget with each local WIC agency in accordance with 7 C.F.R.
246.6.
(b) The availability of budgeted support cost funds for
each local WIC agency is contingent upon the availability of WIC program
support cost funds.
(c) Since local support cost funds are allocated according
to the assigned number of participants to be served, in the event a local WIC
agency is unable to serve the assigned number of participants, the state agency
shall reduce the amount of support cost funds provided to the local WIC agency
by a portion reflective of the level of underperformance.
(d) The state agency shall notify the local WIC agency in
writing of any reduction of support cost funds available to the local WIC
agency.
(e) When state food dollars are overexpended during a
federal fiscal year, local WIC Programs that have maintained an active case
load in excess of their assigned number of participants shall reimburse to the
state their proportionate share of the overexpenditure.
History Note: Authority G.S. 130A-361;
Eff. April 1, 1982;
Amended Eff. October 1, 2009; April 1, 1984.
SECTION .0300 ‑ SELECTION OF LOCAL WIC AGENCIES
10A NCAC 43D .0301 INITIAL APPLICATION
(a) Any local agency interested in applying for a WIC
program grant shall, upon request to the state agency, be sent an information
package to facilitate the application process.
(b) If the application is submitted but is incomplete, the
state agency shall notify the applicant of the additional information required
within fifteen days of receipt of the application.
(c) The state agency shall send notice of approval or
denial of the application within thirty days of receipt of a complete
application. The applicant will be informed as to whether funds are available
to expand WIC program services.
(d) If the application is approved, a written agreement
will be executed.
(e) If the application is denied, the applicant may appeal
the decision according to Section .0800 of this Subchapter.
History Note: Authority G.S. 130A‑361;
Eff. July 1, 1981;
Amended Eff. September 1, 1991.
10A NCAC 43D .0302 CRITERIA FOR SELECTION OF LOCAL AGENCIES
(a) The state agency shall only accept applications from
local agencies as defined in 7 C.F.R. 246.2.
(b) The application must be to provide WIC program benefits
to an area or population not receiving program benefits from a local WIC
agency.
(c) WIC program funds must be available to serve the area
or population described in the application.
(d) The State Agency shall consider the local agency priority
system and Affirmative Action Plan described in 7 C.F.R. 246.5 in making the
decision to fund or not to fund an application.
History Note: Authority G.S. 130A‑361;
Eff. July 1, 1981;
Amended Eff. October 1, 2009.
10A NCAC 43D.0303 CONTINUATION OF LOCAL WIC AGENCIES
(a) All grants to local WIC agencies shall be issued
annually through an agreement unless the agreement has been terminated as
specified in Rule .0305 of this Section.
(b) All local WIC agencies are eligible to obtain a grant
for the next fiscal year provided that:
(1) WIC program funds are available to serve
the area or population;
(2) The agency continues to operate as a local
WIC agency; and
(3) The agency signs and submits the grant
agreement and budget required by the state agency.
History Note: Authority G.S. 130A‑361;
Eff. July 1, 1981;
Amended Eff. October 1, 2009; September 1, 1991.
10A NCAC 43D .0304 EXPANSION OF LOCAL WIC PROGRAMS
Local WIC agencies that plan to increase the number of
persons served shall submit a written request to the Nutrition Services
Section. The availability of funds and the Affirmative Action Plan contained
in the North Carolina State WIC Program Plan of Operation will be considered in
making the decision to approve or deny the request.
History Note: Authority G.S. 130A‑361;
Eff. July 1, 1981;
Amended Eff. December 6, 1991; November 1, 1990.
10A NCAC 43D .0305 TERMINATION OF LOCAL WIC AGENCIES
(a) The authority to operate a local WIC program may be
terminated for noncompliance.
(b) If FNS terminates or suspends the North Carolina WIC
program, the state agency shall in turn, terminate or suspend its agreements
with local WIC agencies.
(c) Termination of a local agency is subject to the appeal
provisions of 7 C.F.R. 246.18(a)(3) and Section .0800 of this Subchapter.
History Note: Authority G.S. 130A‑361;
Eff. July 1, 1981;
Amended Eff. October 1, 2009; September 1, 1991.
section .0400 - ELIGIBILITY FOR WIC PROGRAM PARTICIPATION
10A NCAC 43D .0401 ELIGIBILITY
10A NCAC 43D .0402 APPLICATION
10A NCAC 43D .0403 MEDICAL AND NUTRITION ASSESSMENT
10A NCAC 43D .0404 NUTRITIONAL RISK CERTIFICATION CRITERIA
10A NCAC 43D .0405 SCHEDULE OF CERTIFICATION
10A NCAC 43D .0406 DOCUMENTATION OF CERTIFICATION
10A NCAC 43D .0407 TRANSFER OF CERTIFICATION
History Note: Authority G.S. 130A‑361; 7 C.F.R.
246; 143B‑10;
Eff. July 1, 1981;
Amended Eff. October 1, 1993; September 1, 1991; December
6, 1991; November 1, 1990; October 1, 1990; July 1, 1989;
Repealed Eff. October 1, 2009.
10A NCAC 43D .0408 WAITING LIST
(a) If a local WIC agency is serving its maximum caseload
or spending its maximum food money and additional participants cannot be issued
food instruments, a waiting list must be established in accordance with 7
C.F.R. 246.7.
(b) Local WIC agencies maintaining a waiting list shall
continue to provide WIC program benefits to all individuals enrolled in the
program until the expiration of their certification period.
(c) Local WIC agencies shall enroll individuals in a manner
which ensures that applicants in a higher priority group are first given an
opportunity to receive food instruments in accordance with 7 C.F.R. 246.7(e)(4)
which is incorporated by reference with all subsequent amendments and editions.
History Note: Authority G.S. 130A-361;
Eff. July 1, 1981;
Amended Eff. October 1, 2009; November 1, 1990; July 1,
1989.
10A NCAC 43D .0409 REQUIRED NOTIFICATIONS
History Note: Authority G.S. 130A‑361;
Eff. July 1, 1981;
Amended Eff. September 1, 1991; July 1, 1989;
Repealed Eff. October 1, 2009.
10A NCAC 43D .0410 participant violations and sanctions
(a) The State agency shall assess a claim for the full
value of Program benefits that have been obtained or disposed of improperly as
the result of a participant violation. "Participant violation" means
those violations listed in 7 C.F.R. 246.2 which are incorporated by reference
in Rule .0202 of this Subchapter. A claim shall not be paid by offsetting the
claim against future Program benefits.
(b) The following participant violations committed by a
participant, parent or caretaker of an infant or child participant, or proxy
shall result in a one-year disqualification of the participant from the WIC
Program, except as provided in Paragraphs (c) and (d) of this Rule:
(1) Exchanging food instruments, cash-value
vouchers or supplemental food for cash;
(2) Exchanging food instruments, cash-value
vouchers or supplemental food for alcohol, alcoholic beverages, tobacco
products, firearms, ammunition, explosives, or controlled substances as defined
in 21 U.S.C. 802;
(3) A claim for dual participation resulting
from intentional misrepresentation;
(4) Intentionally making false or misleading
statements or intentionally misrepresenting, concealing, or withholding facts
to obtain Program benefits;
(5) Any participant violation for which a claim
of one hundred dollars ($100.00) or more is assessed;
(6) A second or subsequent claim assessed for
any participant violation, regardless of the dollar amount. The second or
subsequent claim does not have to be for the same participant violation as the
initial claim to result in a one-year disqualification; and
(7) Physical harm to clinic or vendor staff.
(c) The one-year disqualification referenced in Paragraph
(b) of this Rule shall not be imposed against the participant if a claim is
assessed and full payment is made or a repayment schedule is agreed upon within
30 days of receipt of a written demand for repayment of the claim for the
improperly obtained or disposed of Program benefits.
(d) The one-year disqualification referenced in Paragraph
(b) of this Rule shall not be imposed against the participant if the
participant is an infant, child, or under age 18 and the state or local agency
approves the designation of a proxy for the participant. Designation of a
proxy shall be approved if the proxy:
(1) is at least 18 years of age;
(2) presents proof of identification in the
form of a government-issued photo identification card, work or school
identification card, health benefits or social services program card, social security
card, birth certificate, or a pay stub or utility bill no more than 60 days
old;
(3) has written authorization from the
participant or the parent or caretaker of an infant or child participant;
(4) will not be serving as proxy for more than
two families at the same time; and
(5) will be the person who transacts the food
instruments.
(e) Except as provided in Subparagraphs (b)(5) and (b)(6)
of this Rule, the following participant violations committed by a participant,
parent or caretaker of an infant or child participant, or proxy shall result in
a written warning for the first violation and the assessment of a claim for the
full amount of any improperly obtained or disposed of Program benefits:
(1) Exchanging food instruments, cash-value
vouchers or supplemental food for credit;
(2) Exchanging food instruments, cash-value
vouchers or supplemental food for non-food items, other than alcohol, alcoholic
beverages, tobacco products, firearms, ammunition, explosives, or controlled
substances as defined in 21 U.S.C. 802; and
(3) Exchanging food instruments, cash-value
vouchers or supplemental food for unauthorized food items, including
supplemental foods in excess of those listed on the participant's food
instrument.
For the violations listed in this Paragraph, failure to pay
a claim in full or agree to a repayment schedule within 30 days of receipt of a
written demand for repayment of a claim, shall result in a 90-day
disqualification of the participant, unless the participant is an infant,
child, or under age 18 and the state or local agency approves the designation
of a proxy for the participant in accordance with Paragraph (d) of this Rule.
(f) The occurrence of a second or subsequent participant
violation listed in Paragraph (e) of this Rule shall result in a one-year
disqualification of the participant and the assessment of a claim for the full
amount of any improperly obtained or disposed of Program benefits. The second
or subsequent violation does not have to be the same as the initial violation to
result in a one-year disqualification. The one-year disqualification shall not
be imposed against the participant if full payment is made or a repayment
schedule is agreed upon within 30 days of receipt of a written demand for
repayment of a claim. Additionally, the one-year disqualification shall not be
imposed against the participant if the participant is an infant, child, or
under age 18 and the state or local agency approves the designation of a proxy
for the participant in accordance with Paragraph (d) of this Rule.
(g) Threatening physical harm to or verbal abuse of clinic
or vendor staff by a participant, parent or caretaker of an infant or child
participant, or proxy shall result in a written warning for the first
occurrence of this violation. A second occurrence within a 12-month period
shall result in a 90-day disqualification of the participant, unless the
participant is an infant, child, or under age 18 and the state or local agency
approves the designation of a proxy for the participant in accordance with
Paragraph (d) of this Rule.
(h) For any disqualification imposed under this Rule, a
participant may reapply for Program participation if during the period of the
disqualification full payment is made or a repayment schedule is agreed upon,
or in the case of a participant who is an infant, child, or under age 18, the
state or local agency approves the designation of a proxy in accordance with
Paragraph (d) of this Rule.
(i) The participant has a right to a fair hearing in
accordance with Section .0900 of this Subchapter for sanctions imposed under
this Rule.
History Note: Authority G.S. 130A‑361; 7 C.F.R.
246; 42 U.S.C. 1786;
Eff. July 1, 1983;
Amended Eff. November 1, 1990;
Temporary Amendment Eff. July 1, 2002;
Amended Eff. October 1, 2009; August 1, 2004.
10A NCAC 43D .0411 DUAL PARTICIPATION
(a) A WIC participant shall not participate simultaneously
in one or more than one WIC clinic, or participate in the WIC Program and the
Commodity Supplemental Food Program ("CSFP") during the same period
of time. For purposes of this Rule, participate means certification as a WIC
participant for the receipt of WIC food instruments or cash-value vouchers or
certification as a CSFP participant for the receipt of CSFP food.
(b) The state agency shall immediately terminate the
participation in one of the clinics or Programs, or the simultaneous
participation in a single clinic, in accordance with 7 C.F.R. 246.7 (l) when a
participant is found to be in violation of Paragraph (a) of this Rule.
(c) In the case of dual participation resulting from
intentional misrepresentation, the participant, parent or caretaker of an
infant or child participant, or proxy shall repay Program benefits improperly
issued as a result of the dual participation, and the participant shall be
disqualified from participation in both Programs or clinic(s) in accordance
with 7 C.F.R. 246.7 (l) and Paragraph (b) of Rule .0410 of this Section. For
purposes of this Paragraph, receiving WIC food instruments or cash-value
vouchers under two or more participant identities in a single WIC clinic during
the same issuance period and transacting one or more of the food instruments or
cash-value vouchers received under two or more of the identities constitutes
dual participation based on intentional misrepresentation. Receiving WIC food instruments
or cash-value vouchers from more than one WIC clinic during the same issuance
period and transacting one or more of the food instruments or cash-value
vouchers received from two or more of the clinics constitutes dual
participation based on intentional misrepresentation. Additionally, receiving
WIC food instruments or cash-value vouchers and CSFP food during the same time
period and transacting one or more of the WIC food instruments or cash-value
vouchers constitutes dual participation based on intentional misrepresentation.
History Note: Authority G.S. 130A-361; 7 C.F.R. 246; 42
U.S.C. 1786;
Temporary Adoption Eff. July 1, 2002;
Eff. July 1, 2004;
Amended Eff. October 1, 2009.
section .0500 – wic program food package
10A NCAC 43D .0501 Supplemental FOODS
(a) The foods which may be provided to WIC program
participants are specified in 7 C.F.R. 246.10, which is incorporated by
reference including any subsequent amendments and editions. This material is
available for inspection at the Department of Health and Human Services,
Division of Public Health, 5601 Six Forks Road, Raleigh, North Carolina 27609 and may be obtained from Nutrition Services at no cost.
(b) The following exclusions from the food package have
been adopted by the North Carolina WIC program and approved by the United
States Department of Agriculture, Food and Nutrition Service:
(1) shredded, diced, grated and organic cheese;
(2) eggs other than white, fresh, grade A
large;
(3) mackerel and sardines;
(4) organic foods other than fruits and vegetables
obtained with cash-value vouchers;
(5) goat milk; and
(6) dried fruits and vegetables.
(c) The state agency may exclude foods other than those
described in Paragraph (b) of this Rule if it determines such foods to be
inappropriate for provision as supplemental foods through the WIC program as a
result of their cost, nutritional composition, packaging, statewide
availability, participant acceptance, or promotion in a manner which is
contrary to the purpose of the program as contained in 7 C.F.R. 246.1.
History Note: Authority G.S. 130A-361; 7 C.F.R. 246; 42
U.S.C. 1786;
Eff. July 1, 1981;
Amended Eff. October 1, 1993; October 1, 1990; July 1, 1989; October 1, 1988;
Temporary Amendment Eff. July 1, 2002;
Amended Eff. October 1, 2009; August 1, 2004.
10A NCAC 43D .0502 QUANTITY OF FOODS
The amount of supplemental foods provided shall not exceed
the maximum quantities specified in 7 C.F.R. 246.10, which is incorporated by
reference with all subsequent amendments and editions.
History Note: Authority G.S. 130A‑361;
Eff. July 1, 1981;
Amended Eff. October 1, 2009; July 1, 1989; July 1, 1982.
10A NCAC 43D .0503 USE OF WIC SUPPLEMENTAL FOODS
WIC supplemental foods shall be provided for consumption by
the participant and not be distributed for use by institutions such as child
and day care centers.
History Note: Authority G.S. 130A‑361; 7 C.F.R.
246; 42 U.S.C. 1786;
Eff. July 1, 1981;
Amended Eff. October 1, 1990;
Temporary Amendment Eff. July 1, 2002;
Amended Eff. July 1, 2004.
section .0600 - WIC PROGRAM NUTRITION EDUCATION
10A NCAC 43D .0601 EDUCATION OF PARTICIPANTS
10A NCAC 43D .0602 DOCUMENTATION OF NUTRITION EDUCATION
10A NCAC 43D .0603 CONTINUING EDUCATION OF STAFF
10A NCAC 43D .0604 THE LOCAL AGENCY NUTRITION EDUCATION PLAN
History Note: Authority G.S. 130A‑361;
Eff. July 1, 1981;
Amended Eff. December 6, 1991; November 1, 1990;
Repealed Eff. October 1, 2009.
SECTION .0700 ‑ WIC PROGRAM FOOD delivery SYSTEM
10A NCAC 43D .0701 The North carolina automated wic system
The WIC program shall provide supplemental foods through a
uniform retail distribution system in accordance with 7 C.F.R. 246.12. An
automated data processing system shall be utilized to promote the provision of
and accounting for food instruments and cash-value vouchers issued to participants.
History Note: Authority G.S. 130A‑361; 42 U.S.C.
1786; 7 C.F.R. 246;
Eff. July 1, 1981;
Amended Eff. October 1, 2009; April 1, 2001.
10A nCAC 43D .0702 ISSUANCE OF FOOD INSTRUMENTS and
cash-value vouchers
(a) Local WIC agencies shall issue WIC program food
instruments and cash-value vouchers to program participants in a manner which
ensures that participants can receive the appropriate supplemental foods that
have been prescribed for them.
(b) Local WIC agencies shall issue food instruments and
cash-value vouchers in a manner which prevents theft and shall retain
documentation of the disposition of the food instruments and cash-value
vouchers. The documentation of issuance shall include the dated signature of
the authorized individual receiving the food instruments or cash-value vouchers
unless the food instruments or cash-value vouchers are mailed.
(c) Participants shall be given appointments to receive
food instruments or cash-value vouchers in a manner which promotes coordination
with WIC program certification, nutrition education, other health services and
the services being received by other family members.
(d) Food instruments and cash-value vouchers shall be
issued only to the participant, the participant's parent, the participant's
caretaker, a proxy, or a compliance investigator.
History Note: Authority G.S. 130A‑361; 7 C.F.R.
246; 42 U.S.C. 1786;
Eff. July 1, 1981;
Amended Eff. April 1, 2001;
Temporary Amendment Eff. July 1, 2002;
Amended Eff. October 1, 2009; August 1, 2004.
10A NCAC 43D .0703 USE OF FOOD INSTRUMENTS and cash-value
vouchers
(a) Participants may transact food instruments and
cash-value vouchers on any day on or between the "date of issue" and
"participant must use by" dates printed on the food instrument or cash-value
voucher. The "participant must use by" date shall be 30 days from
the "date of issue."
(b) North Carolina WIC program food instruments and
cash-value vouchers shall be transacted only at authorized WIC vendors in
accordance with the terms of the signed WIC Vendor Agreement and WIC Program
rules, regulations, and statutes. Vendors are responsible for food instruments
and cash-value vouchers not properly transacted. Neither an agency of the
United States government, the State of North Carolina, the local WIC agency nor
a past or present WIC participant, parent or caretaker of an infant or child
participant, or proxy is under any obligation to pay for food instruments or
cash-value vouchers accepted by a store that was not an authorized WIC vendor
on the date of transaction of the food instrument or cash-value voucher.
(c) North Carolina WIC food instruments and cash-value
vouchers shall be deposited at the vendor's bank. These food instruments and
cash-value vouchers shall not be assigned, transferred, sold or otherwise
negotiated.
History Note: Authority G.S. 130A‑361; 7 C.F.R.
246; 42 U.S.C. 1786;
Eff. July 1, 1981;
Amended Eff. April 1, 2001; November 1, 1990; July 1. 1989;
Temporary Amendment Eff. July 1, 2002;
Amended Eff. October 1, 2009; August 1, 2004.
10A NCAC 43D .0704 VALIDITY OF WIC FOOD INSTRUMENTS and
cash-value vouchers
(a) North Carolina WIC food instruments and cash-value
vouchers shall not be valid if:
(1) the instrument or voucher has not been
legibly imprinted with an authorized WIC vendor stamp;
(2) the instrument or voucher has been
counterfeited or the signature forged;
(3) the instrument or voucher has been
mutilated, defaced or otherwise tampered with or altered;
(4) the instrument or voucher is not deposited
in the vendor's bank within 60 days of the "date of issue" assigned
to the instrument or voucher;
(5) the "pay exactly" amount (i.e.
purchase price) is not recorded on the food instrument or voucher;
(6) the signature is missing;
(7) the "date transacted" entered on
the instrument or voucher is not on or between the "date of issue"
and "participant must use by" dates assigned to the instrument or
voucher;
(8) the
instrument or voucher is not completed in indelible ink. Invalid food
instruments and cash-value vouchers shall be stamped with the reason for
invalidity and returned to the vendor without payment.
(b) A vendor may attempt to justify or correct an invalid
food instrument or cash-value voucher and shall receive payment if:
(1) for a food instrument or cash-value voucher
invalid under Subparagraph (a)(1) of this Rule, the vendor legibly imprints the
authorized WIC vendor stamp on the food instrument or cash-value voucher and
redeposits it within 95 days from the "date of issue" on the food instrument
or cash-value voucher;
(2) for a food instrument or cash-value voucher
invalid under Subparagraphs (a)(2) or (a)(3) of this Rule, the vendor can
demonstrate the food instrument or cash-value voucher was invalid due solely to
the actions of a third party other than the vendor's owners, officers,
managers, agents, or employees and the "pay exactly" amount is
legible or can be verified by the vendor with a receipt.
(3) for a food instrument or cash-value voucher
invalid under Subparagraph (a)(3) of this Rule, the food instrument or
cash-value voucher was unintentionally mutilated or defaced by the vendor's
owners, officers, managers, agents, or employees and the "pay exactly"
amount is legible or can be verified by the vendor with a receipt.
(4) for a food instrument or cash-value voucher
invalid under Subparagraph (a)(3) of this Rule, the "pay exactly"
amount has been altered and the vendor provides a receipt that confirms the
altered amount is the correct "pay exactly" amount;
(5) for a food instrument or cash-value voucher
invalid under Subparagraph (a)(4) of this Rule, the state WIC office gives
approval to the local WIC agency to replace. The state WIC office shall give
approval to the local WIC agency to replace unless:
(A) the total value of food instruments and cash-value vouchers
submitted at one time to the local WIC agency exceeds five hundred dollars ($500.00);
(B) the vendor has submitted food instruments or
cash-value vouchers for replacement to the local agency on two separate
occasions within the preceding 12 months; or
(C) the date the vendor submits the food instrument or
cash-value voucher to the local WIC agency for replacement is more than six
months past the "date of issue" on the food instrument or cash-value
voucher.
History Note: Authority G.S. 130A-361; 7 C.F.R. 246; 42
U.S.C. 1786;
Eff. July 1, 1981;
Amended Eff. July 1, 1989; July 1, 1985;
Temporary Amendment Eff. May 17, 2000;
Amended Eff. April 1, 2001;
Temporary Amendment Eff. July 1, 2002;
Amended Eff. October 1, 2009; August 1, 2004.
10A NCAC 43D .0705 PAYMENT OF WIC FOOD INSTRUMENTS and
cash-value vouchers
The State of North Carolina shall:
(1) accept North Carolina WIC food instruments and
cash-value vouchers through the Federal Reserve and commercial banking systems;
(2) ensure that WIC food instruments and cash-value
vouchers are valid in accordance with Rule .0704 of this Subchapter;
(3) provide payment for all valid WIC food instruments
and cash-value vouchers. To the extent that sufficient funds are available in
the WIC disbursing account, payment shall be provided according to established
Department of Health and Human Services procedures for payment of WIC food
instruments and cash-value vouchers.
(4) ensure that every invalid WIC food instrument or
cash-value voucher is stamped to indicate the reason for invalidity;
(5) ensure that invalid WIC food instruments and
cash-value vouchers are returned to the banks from which they were received,
according to established banking procedures.
History Note: Authority G.S. 130A‑361; 42 U.S.C.
1786; 7 C.F.R. 246;
Eff. July 1, 1981;
Amended Eff. October 1, 2009; April 1, 2001.
10A NCAC 43D .0706 VENDOR PEER GROUPS
Vendor applicants and authorized vendors shall be placed
into peer groups as follows:
(1) When annual WIC supplemental food sales are not yet
available, vendor applicants and authorized vendors, excluding chain stores,
stores under a WIC corporate agreement, military commissaries, and
free-standing pharmacies, shall be placed into peer groups based on the number
of cash registers in the store until annual WIC supplemental food sales become
available. The following are the peer groups based on the number of cash
registers in the store:
Peer Group I - - zero to two cash
registers;
Peer Group II - - three to five
cash registers; and
Peer Group III - - six or more
cash registers.
WIC sales figures of new vendors shall be
reviewed six months from authorization. A vendor whose first six months of WIC
sales exceed twenty five thousand dollars ($25,000) shall be placed in a peer
group in accordance with the dollar thresholds of Item (2) of this Rule.
(2) Authorized vendors for which annual WIC
supplemental food sales are available, excluding chain stores, stores under a
WIC corporate agreement, military commissaries, and free-standing pharmacies,
shall be placed into peer groups as follows, except as provided in Item (9) of
this Rule:
Peer Group I - - two thousand
dollars ($2,000) to twenty five thousand dollars ($25,000) annually in WIC
supplemental food sales at the store;
Peer Group II - - greater than
twenty five thousand dollars ($25,000) but not exceeding seventy five thousand
dollars ($75,000) annually in WIC supplemental food sales at the store;
Peer Group III - - greater than
seventy five thousand dollars ($75,000) but not exceeding three hundred
thousand dollars ($300,000) annually in WIC supplemental food sales at the
store; and
Peer Group IV - - greater than
three hundred thousand dollars ($300,000) annually in WIC supplemental food
sales at the store.
(3) Chain stores, stores under a WIC corporate
agreement (20 or more authorized vendors under one agreement), military
commissaries, and free-standing pharmacies, including free-standing pharmacy
chain stores and free-standing pharmacies participating under a WIC corporate
agreement, shall be placed into peer groups as follows:
Peer Group IV - - chain stores,
stores under a WIC corporate agreement (20 or more authorized vendors under one
agreement), and military commissaries; and
Peer Group V - - free-standing
pharmacies, including free-standing pharmacy chain stores and free-standing
pharmacies participating under a WIC corporate agreement.
(4) "Annual WIC supplemental food sales" is
the dollar amount an authorized vendor redeems in WIC food instruments and
cash-value vouchers within a 12-month period.
(5) In determining a vendor's peer group designation
based on annual WIC supplemental food sales under Item (2) of this Rule, the
state agency shall look at the most recent 12-month period of redemption data.
(6) The state agency may reassess an authorized vendor's
peer group designation at any time during the vendor's agreement period and
place the vendor in a different peer group if upon reassessment the state
agency determines that the vendor is no longer in the appropriate peer group.
(7) If the state agency determines that a vendor
applicant is expected to be a predominantly WIC vendor as defined in Rule .0202
of this Subchapter, the vendor application shall be denied. The store must
wait 90 days to reapply for vendor authorization. The state agency shall apply
the methodology set forth in 7 CFR 246.12(g)(4)(i)(E) for determining whether a
vendor applicant is expected to be a predominantly WIC vendor.
(8) If at any time during a vendor's authorization the
state agency determines that the vendor has become a predominantly WIC vendor
as defined in Rule .0202 of this Subchapter, the vendor's WIC Vendor Agreement
shall be terminated. The store must wait 90 days to reapply for vendor
authorization. The state agency shall apply the methodology set forth in 7 CFR
246.12(g)(4)(i)(F) for determining whether an authorized vendor has become a
predominantly WIC vendor.
(9) A vendor applicant previously authorized in a peer
group under Item (2) of this Rule that is being reauthorized following the
nonrenewal or termination of its agreement or disqualification or withdrawal
from the WIC Program shall be placed into the same peer group the vendor
applicant was previously in under Item (2) of this Rule, provided that no more
than one year has passed since the nonrenewal, termination, disqualification or
withdrawal. If more than one year has passed, the vendor applicant shall be
placed into a peer group in accordance with Item (1) of this Rule.
History Note: Authority G.S. 130A-361; 7 C.F.R. 246; 42
U.S.C. 1786;
Eff. July 1, 1981;
Amended Eff. August 1, 1995; October 1, 1993; May 1,
1991; December 1, 1990;
Temporary Amendment Eff. June 23, 2000; May 17, 2000;
Amended Eff. April 1, 2001;
Temporary Amendment Eff. September 1, 2002; July 1, 2002;
Amended Eff. November 1, 2005; August 1, 2004;
Temporary Amendment Eff. July 1, 2006;
Amended Eff. February 1, 2013; October 1, 2009; February
1, 2008; April 1, 2007.
10A NCAC 43D .0707 VENDOR APPLICANTS
To become authorized as a WIC vendor, a vendor applicant
shall comply with the following vendor selection criteria:
(1) A vendor applicant shall accurately complete a WIC
Vendor Application, a WIC Price List, and a WIC Vendor Agreement. A vendor
applicant shall submit its current highest shelf price for each WIC
supplemental food listed on the WIC Price List.
(2) A vendor applicant, at the time of application and
throughout the term of authorization, shall submit all completed forms to the
local WIC agency, except that a corporate entity operating under a WIC
corporate agreement shall submit one completed WIC corporate agreement and the
WIC Price Lists to the state agency and a separate WIC Vendor Application for
each store to the local WIC agency. A corporate entity operating under a WIC
corporate agreement may submit a single WIC Price List for those stores that
have the same prices for WIC supplemental foods in each store, rather than
submitting a separate WIC Price List for each store.
(3) A vendor applicant shall purchase all infant
formula, exempt infant formula, and WIC-eligible medical food directly from:
(a) the sources specified in 42 USC
1786(h)(8)(A)(ix), which is incorporated by reference with all subsequent
amendments and editions;
(b) Retail food stores that purchase directly
from the sources referenced in Sub-item (3)(a) of this Item; or
(c) A source on another state's list of approved
infant formula sources as verified by that state's agency.
A vendor applicant
shall make available to the state or local WIC agency invoices or receipts
documenting purchases of all infant formula, exempt infant formula, and
WIC-eligible medical foods. Receipts and invoices must satisfy the
requirements of Sub-items (30)(a) through (30)(c) of Rule .0708. A vendor
applicant shall not be authorized if within the last year the vendor applicant
had a previous WIC Vendor Agreement terminated for failure to purchase infant
formula, exempt infant formula, or WIC-eligible medical food from the sources
specified in this Item. A vendor applicant shall not be authorized if within
the last year the vendor applicant had a previous WIC Vendor Agreement
terminated for providing infant formula, exempt infant formula, or WIC eligible
medical food to WIC customers that was not purchased from the sources specified
in this Item.
(4) A vendor applicant's current highest shelf price
for each WIC supplemental food listed on the WIC Price List must not exceed the
maximum price set by the state agency for each supplemental food within that
vendor applicant's peer group, except as provided in Sub-item (4)(b) of this
Item. The maximum price for each supplemental food shall be established as
follows:
(a) The most recent WIC Price Lists submitted by
authorized vendors within the same peer group shall be used to determine the
maximum price for each supplemental food. The maximum price shall be the 97th
percentile of the current highest shelf prices for each supplemental food
within a vendor peer group. The state agency shall reassess the maximum price
set for each supplemental food at least four times a year. For two of its
price assessments, the state agency shall use the WIC Price Lists which must be
submitted by all vendors by April 1 and October 1 each year in accordance with
Item (32) of Rule .0708. The other two price assessments shall be based on WIC
Price Lists requested from a sample of vendors within each peer group in January
and July of each year.
(b) If any of the vendor applicant's price(s) on
its WIC Price List exceed the maximum price(s) set by the state agency for that
applicant's peer group, the applicant shall be notified in writing. Within 30
days of the date of the written notice, the vendor applicant may resubmit
price(s) that it will charge the state WIC Program for those foods that
exceeded the maximum price(s). If none of the vendor applicant's resubmitted
prices exceed the maximum prices set by the state agency, the vendor applicant
shall be deemed to have met the requirements of Item (4) of this Rule. If any
of the vendor applicant's resubmitted prices still exceed the maximum prices
set by the state agency, or the vendor applicant does not resubmit prices
within 30 days of the date of written notice, the application shall be denied
in writing. The vendor applicant must wait 90 days from the date of receipt of
the written denial to reapply for authorization.
(5) A vendor applicant shall pass a monitoring review
by the local WIC agency to determine whether the store has minimum inventory of
supplemental foods as specified in Item (24) of Rule .0708. A vendor applicant
that fails this review shall be allowed a second opportunity for an unannounced
monitoring review within 14 days. If the applicant fails both reviews, the
application shall be denied in writing and the applicant shall wait 90 days
from the date of the second monitoring review before submitting a new
application.
(6) A vendor applicant shall attend, or cause a manager
or other authorized store representative to attend, WIC Vendor Training
provided by the local WIC agency prior to authorization and ensure that the
applicant's employees receive instruction in WIC program procedures and requirements.
(7) An applicant shall mark the current shelf prices of
all WIC supplemental foods on the foods or have the prices posted on the shelf
or display case at all times.
(8) The store shall be at a single, fixed location
within the State of North Carolina. The store shall be located at the address
indicated on the WIC vendor application and shall be the site at which WIC
supplemental foods are selected by the WIC customer.
(9) The store shall be open throughout the year for
business with the public at least six days a week for at least 40 hours per
week between 8:00 a.m. and 11:00 p.m.
(10) The store shall not use the acronym "WIC"
or the WIC logo, including facsimiles, in total or in part, in the official
name in which the business is registered or in the name under which it does
business.
(11) A vendor applicant shall not submit false,
erroneous, or misleading information in an application to become an authorized
WIC vendor or in subsequent documents submitted to the state or local WIC
agency. A vendor applicant shall not be authorized if within the last year the
vendor applicant had a previous WIC Vendor Agreement terminated for submitting
false, erroneous, or misleading information.
(12) The owner(s), officer(s) or manager(s) of a vendor
applicant shall not be employed, or have a spouse, child, or parent who is
employed by the state WIC program or the local WIC program serving the county
in which the vendor applicant conducts business. A vendor applicant shall not
have an employee who handles, transacts, deposits, or stores WIC food
instruments or cash-value vouchers who is employed, or has a spouse, child, or
parent who is employed by the state WIC program or the local WIC program
serving the county in which the vendor applicant conducts business. Such
situations present a conflict of interest.
(13) WIC vendor authorization shall be denied if in the
last six years any of the vendor applicant's current owners, officers, or
managers have been convicted of or had a civil judgment entered against them for
any activity indicating a lack of business integrity, including fraud,
antitrust violations, embezzlement, theft, forgery, bribery, falsification or
destruction of records, making false statements, receiving stolen property,
making false claims, and obstruction of justice. For purposes of this Item,
"convicted" or "conviction" means and includes a plea of guilty;
a verdict or finding of guilt by a jury, judge, magistrate, or other duly
constituted, established, adjudicating body, tribunal, or official, either
civilian or military; or a plea of no contest, nolo contendere, or the
equivalent. Entry of a prayer for judgment continued following a conviction as
defined in this Item is the same as a conviction for purposes of this Item.
(14) A vendor applicant shall not be authorized if it is
currently disqualified from the Supplemental Nutrition Assistance Program
("SNAP") or it has been assessed a SNAP civil money penalty for
hardship and the disqualification period that otherwise would have been imposed
has not expired.
(15) A vendor applicant, excluding chain stores and
stores under a WIC corporate agreement that have a separate manager on site for
each store, shall not have an owner who holds a financial interest in any of
the following:
(a) a SNAP vendor which is disqualified from
participation in the SNAP or has been assessed a civil money penalty for
hardship in lieu of disqualification and the time period during which the
disqualification would have run, had a penalty not been paid, is continuing; or
(b) another WIC vendor which is disqualified
from participation in the WIC Program or which has been assessed a monetary or
civil money penalty pursuant to G.S. 130A-22(c1), Paragraph (e) or Paragraph
(f) of Rule .0710 as the result of violation of Paragraphs (a) or (b) of Rule
.0710, and if assessed a penalty, the time during which the disqualification
would have run, had a penalty not been assessed, is continuing.
The requirements of
this Item shall not be met by the transfer or conveyance of financial interest
during the period of disqualification. Additionally, the requirements of this
Item shall not be met even if such transfer or conveyance of financial interest
in a SNAP vendor under Sub-item (15)(a) of this Item prematurely ends the
disqualification period applicable to that SNAP vendor. The requirements of
this Item shall apply until the time the SNAP vendor disqualification otherwise
would have expired.
(16) A vendor applicant, excluding free-standing
pharmacies, must have SNAP authorization for the store as a prerequisite for
WIC vendor authorization and must provide its SNAP authorization number to the
state agency.
(17) A vendor applicant shall not become authorized as a
WIC vendor if the store has been disqualified from participation in the WIC Program
and the disqualification period has not expired. A vendor applicant shall not
be authorized as a WIC vendor if any of the vendor applicant's owner(s),
officer(s) or manager(s) currently has or previously had a financial interest
in a WIC vendor that was assessed a claim by the WIC Program and the claim has
not been paid in full.
(18) For a food retailer or free-standing pharmacy to
participate in the WIC Program, a current WIC Vendor Agreement must be signed
by the vendor, the local WIC agency, and the state agency.
(19) If an application for status as an authorized WIC
vendor is denied, the applicant is entitled to an administrative appeal as
described in Section .0800 of this Subchapter.
History Note: Authority G.S. 130A-361; 7 C.F.R. 246; 7
C.F.R. 246.12(g)(3); 7 C.F.R. 246.12(g)(3)(ii); 7 C.F.R. 246.12(h)(3)(xix); 7
C.F.R. 246.12(t); 42 U.S.C. 1786;
Eff. February 1, 2013.
10A NCAC 43D .0708 AUTHORIZED VENDORS
By signing the WIC Vendor Agreement, the vendor agrees to:
(1) Process WIC program food instruments and cash-value
vouchers in accordance with the terms of the Vendor Agreement and state and
federal WIC program rules, regulations and applicable law;
(2) Accept WIC program food instruments and cash-value
vouchers in exchange for WIC supplemental foods. Supplemental foods are those
foods which satisfy the requirements of 10A NCAC 43D .0501;
(3) Provide only the authorized supplemental foods
listed on the food instrument, or authorized fruits and vegetables with a
cash-value voucher, accurately determine the charges to the WIC program, and
complete the "Pay Exactly" box on the food instrument or cash-value
voucher prior to obtaining the signature of the WIC customer. The WIC customer
is not required to get all of the supplemental foods listed on the food
instrument or the full dollar value of the cash-value voucher. However, a WIC
customer may obtain more fruits and vegetables than the full dollar value of a
cash-value voucher if the WIC customer pays the difference;
(4) Enter in the "Pay Exactly" box on the
food instrument or cash-value voucher only the total amount of the current
shelf prices, or less than the current shelf prices, for the supplemental food
actually provided and shall not charge or collect sales taxes for the
supplemental food provided;
(5) Charge no more for supplemental food provided to a
WIC customer than to a non-WIC customer or no more than the current shelf
price, whichever is less;
(6) Accept payment from the state WIC Program only up
to the maximum price set by the state agency for each food instrument within
that vendor's peer group. The maximum price for each food instrument shall be
based on the maximum prices set by the state agency for each supplemental food,
as described in Sub-item (4)(a) of Rule .0707, listed on the food instrument.
A food instrument deposited by a vendor for payment which exceeds the maximum
price shall be paid at the maximum price set by the state agency for that food
instrument;
(7) Accept payment from the state WIC Program only up
to the full dollar value of the cash-value voucher;
(8) Not charge the state WIC Program more than the
maximum price set by the state agency under Item (4)(a) of Rule .0707 for each
supplemental food within the vendor's peer group;
(9) Provide to WIC customers infant formula, exempt
infant formula, and WIC eligible medical food purchased only from the sources
specified in Item (3) of Rule .0707. Providing infant formula, exempt infant
formula, or WIC eligible medical food that has not been purchased from the
sources specified in Item (3) of Rule .0707 shall result in termination of the
WIC Vendor Agreement;
(10) For free-standing pharmacies, provide only exempt
infant formula and WIC-eligible medical foods;
(11) Excluding free-standing pharmacies, redeem at least
two thousand dollars ($2,000) annually in WIC supplemental food sales. Failure
to redeem at least two thousand dollars ($2,000) annually in WIC supplemental
food sales shall result in termination of the WIC Vendor Agreement. The store
must wait 180 days to reapply for authorization;
(12) Accept WIC program food instruments and cash-value
vouchers only on or between the "Issue Date" and the "Participant
Must Use By" dates;
(13) Prior to obtaining the WIC customer's signature,
enter in the "Date Transacted" box the month, day and year the WIC
food instrument or cash-value voucher is exchanged for supplemental food;
(14) Ensure that the WIC customer signs the food
instrument or cash-value voucher in the presence of the cashier;
(15) Refuse to transact any food instrument or cash-value
voucher that has been altered;
(16) Not transact food instruments or cash-value vouchers
in whole or in part for cash, credit, unauthorized foods, or non-food items;
(17) Not provide refunds or permit exchanges for
authorized supplemental foods obtained with food instruments or cash-value vouchers,
except for exchanges of an identical authorized supplemental food when the
original authorized supplemental food is defective, spoiled, or has exceeded
its "sell by," "best if used by," or other date limiting
the sale or use of the food. An identical authorized supplemental food means
the exact brand, type and size as the original authorized supplemental food
obtained and returned by the WIC customer;
(18) Imprint the authorized WIC vendor stamp in the "Pay
the Authorized WIC Vendor Stamped Here" box on the face of the food
instrument or cash-value voucher to enable the vendor number to be read during
the Program editing process;
(19) Imprint the vendor's bank deposit stamp or the
vendor's name, address and bank account number in the "Authorized WIC
Vendor Stamp" box in the endorsement;
(20) Deposit WIC program food instruments and cash-value
vouchers in the vendor's bank. All North Carolina WIC program food instruments
and cash-value vouchers must be deposited in the vendor's bank within 60 days of
the "Issue Date" on the food instrument or cash-value voucher;
(21) Ensure that the authorized WIC vendor stamp is used
only for the purpose and in the manner authorized by the Agreement and be
responsible for the unauthorized use of the authorized WIC vendor stamp;
(22) Maintain storage of the authorized WIC vendor stamp
so only the staff designated by the vendor owner or manager have access to the
stamp and report loss of this stamp within two business days to the local WIC
agency;
(23) Notify the local WIC agency of misuse (attempted or
actual) of WIC program food instruments or cash-value vouchers;
(24) Maintain a minimum inventory of supplemental foods
in the store for purchase. Supplemental foods that are outside of the
manufacturer's expiration date do not count towards meeting the minimum
inventory requirement. The following items and sizes constitute the minimum
inventory of supplemental foods for vendors in Peer Groups I through III of
Item (1) of Rule .0706, vendors in Peer Groups I through IV of Item (2) of Rule
.0706 and vendors in Peer Group IV of Item (3) of Rule .0706:
Food
Item
Type
of Inventory
Quantities
Required
Milk
Whole fluid: gallon
-and-
Skim/lowfat fluid:
gallon
2 gallons
4 gallons
Cheese
1 pound package
2 pounds
Cereals
2 types: whole
grain
(minimum package
size 12 ounce)
6 packages total
Eggs
Grade A, large,
white:
one dozen size
carton
2 dozen
Juices
Single strength:
48 ounce container
64 ounce container
4 containers
4 containers
Dried Peas and Beans
one pound package
2 packages
Peanut Butter
16 to 18 ounce
container
2 containers
Infant Cereal
8 ounce box
6 boxes
Infant Formula
milk-based
concentrate; 12 to 13 ounce
-and-
soy-based
concentrate; 12.0 to 13 ounce
-and-
34 cans
17 cans
milk-based powder;
11.0 to 14.0 ounce
-and-
soy-based powder;
11.0 to 14.0 ounce
Brands must be the
primary contract infant formulas
10 cans
5 cans
Fruits
14 to 16 ounce can:
2 varieties
6 cans total
Vegetables
(Excludes foods in Dried Peas and Beans category)
14 to 16 ounce can:
2 varieties
6 cans total
All vendors in Peer
Groups I through III of Item (1) of Rule .0706, Peer Groups I through IV of
Item (2) of Rule .0706 and Peer Groups IV and V of Item (3) of Rule .0706 shall
supply milk, soy-based or lactose-free infant formula in 32 ounce ready-to-feed
or lactose-free powder within 48 hours of request by the state or local WIC
agency;
(25) Ensure that all supplemental foods in the store for
purchase are within the manufacturer's expiration date;
(26) Permit the purchase of supplemental food without
requiring other purchases;
(27) Attend, or cause a manager or other authorized store
representative to attend, annual vendor training upon notification by the local
WIC agency. Failure to attend annual vendor training by September 30 of each
year shall result in termination of the WIC Vendor Agreement;
(28) Inform and train vendor's cashiers and other staff
on WIC Program requirements;
(29) Be accountable for the actions of its owners,
officers, managers, agents, and employees who commit vendor violations;
(30) Allow monitoring and inspection of the store
premises and procedures to ensure compliance with the agreement and state and
federal WIC Program rules, regulations and applicable law. This includes
providing access to all program-related records, including access to all WIC
food instruments and cash-value vouchers at the store; vendor records pertinent
to the purchase and sale of WIC supplemental foods, including invoices,
receipts, copies of purchase orders, and any other proofs of purchase; federal
and state corporate and individual income tax and sales and use tax returns and
all records pertinent to these returns; and books and records of all financial
and business transactions. These records must be retained by the vendor for a
period of three years or until any audit pertaining to these records is
resolved, whichever is later. Notwithstanding any other provision of this Rule
and Rules .0707 and .0710, failure or inability to provide these records for an
inventory audit or providing false records for an inventory audit shall be
deemed a violation of 7 C.F.R. 246.12(l)(1)(iii)(B) and Subparagraph (a)(1) of
Rule .0710. Invoices, receipts, purchase orders, and any other proofs of
purchase for WIC supplemental foods shall include:
(a) the name of the seller and be prepared
entirely by the seller or on the seller's business letterhead;
(b) the date of purchase and the date the
authorized vendor received the WIC supplemental food at the store if different
from the date of purchase; and
(c) a description of each WIC supplemental food
item purchased, including brand name, unit size, type or form, and quantity;
(31) Maintain a record of all SNAP-eligible food sales
and provide to the State agency upon request a statement of the total amount of
revenue derived from SNAP-eligible food sales and written documentation to
support the amount of sales claimed by the vendor, such as sales records,
financial statements, reports, tax documents or other verifiable documentation;
(32) Submit a current accurately completed WIC Price List
when signing this agreement, and by April 1 and October 1 of each year. The
vendor also agrees to submit a WIC Price List within one week of any written
request by the state or local WIC agency;
(33) Reimburse the state agency in full or agree to a
repayment schedule with the state agency within 30 days of written notification
of a claim assessed due to a vendor violation that affects payment to the
vendor or a claim assessed due to the unauthorized use of the WIC vendor stamp.
Failure to reimburse the state agency in full or agree to a repayment schedule
within 30 days of written notification of a claim shall result in termination
of the WIC Vendor Agreement. The state agency shall deny payment or assess a
claim in the amount of the full purchase price of each food instrument or
cash-value voucher invalid under Subparagraphs (a)(2), (a)(5), (a)(6) or (a)(7)
of Rule .0704 of this Section. Denial of payment by the state agency or
payment of a claim by the vendor for a vendor violation(s) shall not absolve
the vendor of the violation(s). The vendor shall also be subject to any vendor
sanctions authorized under Rule .0710 for the vendor violation(s);
(34) Not seek restitution from the WIC customer for reimbursement
paid by the vendor to the state agency or for WIC food instruments or
cash-value vouchers not paid or partially paid by the state agency.
Additionally, the vendor shall not charge the WIC customer for authorized
supplemental foods obtained with food instruments or cash-value vouchers;
(35) Not contact a WIC customer outside the store
regarding the transaction or redemption of WIC food instruments or cash-value
vouchers;
(36) Notify the local WIC agency in writing at least 30
days prior to a change of ownership, change in store location, cessation of
operations, or withdrawal from the WIC Program. Change of ownership, change in
store location of more than three miles from the store's previous location,
cessation of operations, withdrawal from the WIC Program or disqualification
from the WIC Program shall result in termination of the WIC Vendor Agreement by
the state agency. Change of ownership, change in store location, ceasing
operations, withdrawal from the WIC Program or nonrenewal of the WIC Vendor
Agreement shall not stop a disqualification period applicable to the store;
(37) Return the authorized WIC vendor stamp to the local
WIC agency upon termination of the Agreement or disqualification from the WIC
Program;
(38) Not discriminate on the basis of WIC participation,
such as failing to offer WIC customers the same courtesies offered to other
customers or requiring separate WIC lines;
(39) Reapply to continue to be authorized beyond the
period of its current WIC Vendor Agreement. Additionally, a store must reapply
to become authorized following the expiration of a disqualification period or
termination of the Agreement. In all cases, the vendor applicant is subject to
the vendor peer group criteria of Rule .0706 and the vendor selection criteria
of Rule .0707; and
(40) Comply with all the requirements for vendor
applicants of Items (3), (4) and (7) through (16) of Rule .0707 throughout the
term of authorization. The state agency may reassess a vendor at any time
during the vendor's period of authorization to determine compliance with these
requirements. The state agency shall terminate the WIC Vendor Agreement of any
vendor that fails to comply with Items (3), (4), (8), (9), (10), (11), (12),
(13) or (15) of Rule .0707 during the vendor's period of authorization, and
terminate the agreement of or sanction or both any vendor that fails to comply
with Items (7), (14) or (16) of Rule .0707 during the vendor's period of
authorization.
History Note: Authority G.S. 130A-361; 7 C.F.R. 246; 42
U.S.C. 1786;
Eff. March 1, 2013.
10A NCAC 43D .0709 LOCAL WIC AGENCY
By signing the WIC Vendor Agreement, the local WIC agency
agrees to the following:
(1) Provide annual vendor training on WIC
procedures and rules;
(2) Conduct routine monitoring, as set forth in
7 C.F.R. 246.2 and 7 C.F.R. 246.12(j)(2), of the vendor's performance under the
agreement to ensure compliance with the agreement and state and federal WIC
program rules, regulations, and applicable law. A minimum of one-third of all
authorized vendors shall be monitored within a fiscal year (October 1 through
September 30) and all vendors shall be monitored at least once within three
consecutive fiscal years. Any vendor shall be monitored within one week of
written request by the state agency;
(3) Provide vendors with the North Carolina WIC
Vendor Manual, all Vendor Manual amendments, blank WIC Price Lists, and the
authorized WIC vendor stamp indicated on the signature page of the WIC Vendor
Agreement; and
(4) Assist the vendor with questions which may
arise under the agreement or through the vendor's participation in the WIC
Program.
History Note: Authority G.S. 130A-361; 7 C.F.R. 246; 42
U.S.C. 1786;
Eff. February 1, 2013.
10A NCAC 43D .0710 VENDOR VIOLATIONS AND SANCTIONS
(a) Title 7 C.F.R. 246.12(l)(1)(i) through (vi) and (xii)
are incorporated by reference with all subsequent amendments and editions. In
accordance with 7 C.F.R. 246.12(l)(1)(i), the state agency shall not allow
imposition of a civil money penalty in lieu of disqualification for a vendor
permanently disqualified. A pattern, as referenced in 7 CFR 246.12
(l)(1)(iii)(B) through (F) and 246.12(l)(1)(iv)(A), shall be established as
follows:
(1) claiming reimbursement for the sale of an
amount of a specific supplemental food item which exceeds the store's
documented inventory of that supplemental food item for six or more days within
a 60-day period. The six or more days do not have to be consecutive days
within the 60-day period. Failure or inability to provide records or providing
false records required under Item (30) of Rule .0708 for an inventory audit
shall be deemed a violation of 7 C.F.R. 246.12(l)(1)(iii)(B) and this
Subparagraph;
(2) two occurrences of vendor overcharging
within a 12-month period;
(3) two occurrences of receiving, transacting
or redeeming food instruments or cash-value vouchers outside of authorized
channels, including the use of an unauthorized vendor or an unauthorized person
within a 12-month period;
(4) two occurrences of charging for
supplemental food not received by the WIC customer within a 12-month period;
(5) two occurrences of providing credit or
non-food items, other than alcohol, alcoholic beverages, tobacco products,
cash, firearms, ammunition, explosives, or controlled substances as defined in
21 U.S.C. 802, in exchange for food instruments or cash-value vouchers within a
12-month period; or
(6) three occurrences of providing unauthorized
food items in exchange for food instruments or cash-value vouchers, including
charging for supplemental food provided in excess of those listed on the food
instrument within a 12-month period.
(b) Title 7 C.F.R. 246.12(l)(2)(i) is incorporated by
reference with all subsequent amendments and editions. Except as provided in 7
C.F.R. 246.12 (l)(1)(xii), a vendor shall be disqualified from the WIC Program
for the following state-established violations in accordance with the number of
occurrences and sanctions set forth below:
(1) One year for two occurrences within a
12-month period of discrimination on the basis of WIC participation as
referenced in Item (38) of Rule .0708. Each date this violation is detected is
a separate occurrence;
(2) One year for three occurrences within a
12-month period of failure to properly transact a WIC food instrument or
cash-value voucher by not completing the date and purchase price on the WIC
food instrument or cash-value voucher before obtaining the WIC customer's
signature, by not obtaining the WIC customer's signature in the presence of the
cashier, or by accepting a WIC food instrument or cash-value voucher prior to
the "Issue Date" or after the "Participant Must Use By"
dates on the food instrument or cash-value voucher. Except as provided in 7
C.F.R. 246.12(l)(3)(iv), each improperly transacted food instrument or
cash-value voucher is a separate occurrence;
(3) One year for three occurrences within a
12-month period of requiring a cash purchase to transact a WIC food instrument
or cash-value voucher. Except as provided in 7 C.F.R. 246.12(l)(3)(iv), each
transacted food instrument or cash-value voucher requiring a cash purchase is a
separate occurrence;
(4) 270 days for three occurrences within a
12-month period of contacting a WIC customer in an attempt to recoup funds for
a food instrument or cash-value voucher or contacting a WIC customer outside
the store regarding the transaction or redemption of a WIC food instrument or
cash-value voucher. Each contact with any WIC customer is a separate
occurrence, whether each contact is with the same or different WIC customers;
(5) 180 days for three occurrences within a
12-month period of failure to provide program-related records referenced in
Item (30) of Rule .0708 when requested by WIC staff, except as provided in Item
(30) of Rule .0708 and Subparagraph (a)(1) of this Rule for failure or
inability to provide records for an inventory audit. Each request for records
is a separate occurrence, whether each request is for the same or different
records;
(6) 180 days for three occurrences within a
12-month period of failure to provide the information referenced in Item (31)
of Rule .0708 when requested by WIC staff. Each request for information is a
separate occurrence, whether each request is for the same or different
information;
(7) 180 days for three occurrences within a
12-month period of failure to stock the minimum inventory specified in Item
(24) of Rule .0708. Each date this violation is detected is a separate
occurrence;
(8) 90 days for three occurrences within a
12-month period of stocking WIC supplemental foods outside of the manufacturer's
expiration date. Each date this violation is detected is a separate
occurrence;
(9) 90 days for three occurrences within a
12-month period of failure to allow monitoring of a store by WIC staff. Each
attempt to monitor the store is a separate occurrence;
(10) 90 days for five occurrences within a
12-month period of failure to submit a WIC Price List as required by Item (32)
of Rule .0708. Each written request by the state or local WIC agency for
submission of a WIC Price List is a separate occurrence, whether each request
is for the same or different WIC Price Lists;
(11) 60 days for three occurrences within a
12-month period of failure to mark the current shelf prices of all WIC
supplemental foods on the foods or have the prices posted on the shelf or
display case. Each date this violation is detected is a separate occurrence;
and
(12) 60 days for five occurrences within a
12-month period of requiring the purchase of a specific brand when more than
one WIC supplemental food brand is available. Except as provided in 7 C.F.R.
246.12(l)(3)(iv), each transacted food instrument or cash-value voucher
requiring the purchase of a specific brand when more than one WIC supplemental
food brand is available is a separate occurrence.
If during the course of a single investigation the state
agency determines that a vendor has committed multiple state-established
violations, the disqualification periods shall be cumulative, provided that the
total period of disqualification shall not exceed one year for
state-established violations investigated as part of a single investigation, as
defined in Paragraph (c) of this Rule.
(c) For investigations pursuant to this Section, a single
investigation is:
(1) Compliance buy(s) conducted by undercover
investigators within a 12-month period to detect the following violations:
(A) buying or selling food instruments or cash-value
vouchers for cash (trafficking);
(B) selling firearms, ammunition, explosives, or
controlled substances as defined in 21 U.S.C. 802, in exchange for food
instruments or cash-value vouchers;
(C) selling alcohol or alcoholic beverages or tobacco products
in exchange for food instruments or cash-value vouchers;
(D) vendor overcharging;
(E) receiving, transacting, or redeeming food
instruments or cash-value vouchers outside of authorized channels, including
the use of an unauthorized vendor or an unauthorized person;
(F) charging for supplemental food not received by the
WIC customer;
(G) providing credit or non-food items, other than
alcohol, alcoholic beverages, tobacco products, cash, firearms, ammunition,
explosives, or controlled substances as defined in 21 U.S.C. 802, in exchange
for food instruments or cash-value vouchers;
(H) providing unauthorized food items in exchange for
food instruments or cash-value vouchers, including charging for supplemental
food provided in excess of those listed on the food instrument;
(I) failure to properly transact a WIC food instrument
or cash-value voucher;
(J) requiring a cash purchase to transact a WIC food
instrument or cash-value voucher; or
(K) requiring the purchase of a specific brand when more
than one WIC supplemental food brand is available.
(2) Monitoring reviews of a vendor conducted by
WIC staff within a 12-month period which detect the following violations:
(A) failure to stock the minimum inventory specified in
Item (24) of Rule .0708;
(B) stocking WIC supplemental food outside of the
manufacturer's expiration date;
(C) failure to allow monitoring of a store by WIC staff;
(D) failure to provide program-related records
referenced in Item (30) of Rule .0708 when requested by WIC staff;
(E) failure to mark the current shelf prices of all WIC
supplemental foods on the foods or have the prices posted on the shelf or
display case; or
(F) unauthorized use of the "WIC" acronym or
the logo.
(3) Any other method used by the state or local
agency to detect the following violations by a vendor within a 12-month period:
(A) failure to attend annual vendor training;
(B) failure to submit a WIC Price List as required by
Item (32) of Rule .0708;
(C) discrimination on the basis of WIC participation as
referenced in Item (38) of Rule .0708.
(D) contacting a WIC customer in an attempt to recoup
funds for food instruments or cash-value vouchers or contacting a WIC customer
outside the store regarding the transaction or redemption of WIC food
instruments or cash-value vouchers;
(E) nonpayment of a claim assessed by the state agency;
(F) providing false, erroneous, or misleading
information to the state or local WIC agency;
(G) claiming reimbursement for the sale of an amount of
a specific supplemental food item which exceeds the store's documented
inventory of that supplemental food item for a specific period of time, or
failure or inability to provide records or providing false records required
under Item (30) of Rule .0708 for an inventory audit;
(H) failure to purchase infant formula, exempt infant
formula or WIC-eligible medical foods from the sources specified in Item (3) of
Rule .0707; or
(I) providing WIC customers infant formula, exempt
infant formula, or WIC eligible medical food that was not purchased from the
sources specified in Item (3) of Rule .0707.
(d) The SNAP disqualification provisions in 7 C.F.R.
246.12(l)(1)(vii) are incorporated by reference with all subsequent amendments
and editions.
(e) The participant access provisions of 7 C.F.R.
246.12(l)(1)(ix) and 246.12(l)(8) are incorporated by reference with all
subsequent amendments and editions. The existence of any of the factors listed
in Parts (f)(3)(A), (f)(3)(B) or (f)(3)(C) of this Rule shall conclusively show
adequate participant access provided there is no geographic barrier, such as an
impassable mountain or river, to using the other authorized WIC vendors
referenced in these Parts. The agency shall not consider other indicators of
inadequate participant access when any of these factors exist.
(f) The following provisions apply to monetary and civil
money penalties assessed in lieu of disqualification of a vendor:
(1) The civil money penalty formula in 7 C.F.R.
246.12(l)(l)(x) is incorporated by reference with all subsequent amendments and
editions, provided that the vendor's average monthly redemptions shall be
calculated by using the six-month period ending with the month immediately
preceding the month during which the notice of administrative action is dated.
(2) The state agency may also impose monetary
penalties in accordance with G.S. 130A-22(c1) in lieu of disqualification of a
vendor for the state-established violations listed in Paragraph (b) of this
Rule when the state agency determines that disqualification of a vendor would
result in participant hardship in accordance with Subparagraph (f)(3) of this
Paragraph.
(3) In determining whether to disqualify a WIC
vendor for the state-established violations listed in Paragraph (b) of this
Rule, the agency shall not consider other indicators of hardship if any of the
following factors, which conclusively show lack of hardship, are found to
exist:
(A) the noncomplying vendor is located outside of the
limits of a city, as defined in G.S. 160A-2, and another WIC vendor is located
within seven miles of the noncomplying vendor;
(B) the noncomplying vendor is located within the limits
of a city, as defined in G.S. 160A-2, and another WIC vendor is located within
three miles of the noncomplying vendor; or
(C) a WIC vendor, other than the noncomplying vendor, is
located within one mile of the local agency at which WIC participants pick up
their food instruments or cash-value vouchers.
(4) The provisions for failure to pay a civil
money penalty in 7 C.F.R. 246.12(l)(6) are incorporated by reference with all
subsequent amendments and editions. These provisions also apply to a vendor
that fails to pay a monetary penalty imposed under G.S. 130A-22(c1).
(g) The provisions of 7 C.F.R. 246.12(l)(1)(viii)
prohibiting voluntary withdrawal from the WIC Program or nonrenewal of the WIC
Vendor Agreement as an alternative to disqualification are incorporated by
reference with all subsequent amendments and editions.
(h) The provisions of 42 USC 1786 (f)(26) and 7 CFR
246.12(l)(3) regarding vendor notification of violations are incorporated by
reference with all subsequent amendments and editions.
(i) The state agency may offset payments to an authorized
vendor if the vendor fails to reimburse the state agency in accordance with
Item (33) of Rule .0708.
(j) In accordance with 7 C.F.R. 246.12(l)(7) or
246.12(u)(5) or both, North Carolina's procedures for dealing with abuse of the
WIC program by authorized WIC vendors do not exclude or replace any criminal or
civil sanctions or other remedies that may be applicable under any federal or
state law.
(k) Notwithstanding other provisions of this Rule and Rules
.0707 and .0708, for the purpose of providing a one-time payment to a
non-authorized store for WIC food instruments or cash-value vouchers accepted
by the store, an agreement for a one-time payment need only be signed by the
store manager and the state agency. The store may request such one-time
payment directly from the state agency. The store manager shall sign an
agreement indicating that the store has provided foods as prescribed on the
food instrument or as allowed with the cash-value voucher, charged current
shelf prices or less than current shelf prices, not charged sales tax, and
verified the identity of the WIC customer. Any agreement entered into in this
manner shall automatically terminate upon payment of the food instruments or
cash-value vouchers. After entering into an agreement for a one-time payment,
a non-authorized store shall not be allowed to enter into any further one-time
payment agreements for WIC food instruments or cash-value vouchers accepted
thereafter.
(l) Except as provided in 7 C.F.R. 246.18(a)(2), an
authorized WIC vendor shall be given at least 15 days advance written notice of
any adverse action which affects the vendor's participation in the WIC
Program. The vendor appeal procedures shall be in accordance with 10A NCAC 43D
.0800.
History Note: Authority G.S. 130A-361; 7 C.F.R. 246; 42
U.S.C. 1786;
Eff. February 1, 2013.
SECTION .0800 ‑ WIC PROGRAM ADMINISTRATIVE APPEALS
10A NCAC 43D .0801 RESERVED FOR FUTURE CODIFICATION
10A NCAC 43D .0802 APPEALS
(a) The appeal provisions for vendors and local agencies
found in 7 C.F.R. 246.18(a), (b)(1) and (b)(9) are incorporated by reference
with all subsequent amendments and editions. The appeal procedures in 7 C.F.R.
246.18(b)(1) and (b)(9) shall apply to the adverse actions listed in 7 C.F.R.
246.18(a)(1)(i), (a)(1)(ii) and (a)(3)(i).
(b) All administrative appeals under this Section shall be
made in accordance with G.S. 150B and G.S. 130A-24.
History Note: Authority
G.S. 130A-361; 7 C.F.R. 246.18; 42 USC 1786;
Eff. July 1, 1981;
Amended Eff. July 1, 1987; July 1, 1986; July 1, 1983; July 1, 1982;
Temporary Amendment
Eff. May 17, 2000;
Amended Eff. April 1, 2001;
Temporary Amendment
Eff. July 1, 2002;
Amended Eff. July 1, 2004.
10a ncac 43d .0803 RESERVED FOR FUTURE CODIFICATION
10A NCAC 43D .0804 CONTINUATION OF PARTICIPATION
Except as provided in 42 U.S.C. 1786(o)(2) and 7 C.F.R.
246.18(a)(2) and (a)(3)(iii), the participation of a local WIC agency or
authorized WIC vendor in the WIC program may continue during an administrative
appeal. Except as provided in 42 U.S.C. 1786(o)(2) and 7 C.F.R. 246.18(a)(2)
and (a)(3)(iii), the adverse action shall become effective upon issuance of a
final agency decision pursuant to G.S. 150B-36 which upholds the adverse
action.
History Note: Authority G.S. 130A‑361; 7 C.F.R.
246.18; 42 U.S.C. 1786;
Eff. July 1, 1981;
Amended Eff. July 1, 1986;
Temporary Amendment Eff. July 1, 2002;
Amended Eff. July 1, 2004.
10A NCAC 43D .0805 RESERVED FOR FUTURE CODIFICATION
10A NCAC 43D .0806 CONTINUING RESPONSIBILITIES
An appeal shall not relieve the local agency or authorized
WIC vendor that is permitted to continue Program operations while its appeal is
in process from the responsibility of continued compliance with the terms of
any written agreement or contract with the state or local agency and WIC
Program rules, regulations, and law.
History Note: Authority G.S. 130A‑361; 7 C.F.R.
246.18; 42 U.S.C. 1786;
Eff. July 1, 1981;
Temporary Amendment Eff. July 1, 2002;
Amended Eff. July 1, 2004.
SECTION .0900 ‑ WIC PROGRAM PARTICIPANT FAIR HEARINGS
10A NCAC 43D .0901 RESERVED FOR FUTURE CODIFICATION
10A NCAC 43D .0902 GENERAL CONDITIONS
(a) This Section shall be carried out in accordance with 7
C.F.R. 246.9 and G.S. 150B‑22. The fair hearing procedures set out in
this Section establish an informal dispute resolution process which must be
complied with prior to making a formal appeal in accordance with G.S. 150B.
(b) For the purposes of this Section, agency official shall
mean the Branch Head of the Nutrition Services Branch or his or her designee.
History Note: Authority G.S. 130A‑361; 150B‑22;
7 C.F.R. 246.9; 42 U.S.C. 1786;
Eff. July 1, 1981;
Amended Eff. December 6, 1991; November 1, 1990; July 1, 1987;
Temporary Amendment Eff. July 1, 2002;
Amended Eff. July 1, 2004.
10A NCAC 43D .0903 AVAILABILITY
Any individual may
appeal a state or local agency action which results in a claim against the
individual for repayment of the cash value of improperly issued Program
benefits or results in the individual's denial of participation or
disqualification from the WIC Program by requesting a fair hearing.
History Note: Authority G.S. 130A‑361; 150B‑22;
7 C.F.R. 246.9; 42 U.S.C. 1786;
Eff. July 1, 1981;
Amended Eff. November 1, 1990;
Temporary Amendment Eff. July 1, 2002;
Amended Eff. July 1, 2004.
10A NCAC 43D .0904 NOTIFICATION OF THE RIGHT TO A FAIR
HEARING
(a) Every current or potential WIC participant shall be
informed by the local WIC agency of his or her right to a fair hearing:
(1) in writing at the time of application;
(2) in writing whenever he or she is determined
ineligible;
(3) in writing if disqualified due to abuse of
the program;
(4) in writing at the time of assessment of a
claim for repayment of the cash value of improperly issued Program benefits;
and
(5) orally or in writing at least 15 days
before the expiration of each certification period.
(b) The content of the notice of fair hearing shall
include:
(1) a statement of the right to a fair hearing;
(2) the method by which a fair hearing may be
requested, including the time limit; and
(3) who may represent the individual.
(c) In order to notify current and potential participants
of the fair hearing process, a simplified summary of the steps involved in
obtaining a fair hearing shall be posted in a visible place at every WIC site
where certifications are performed, food instruments are issued or applications
are accepted. This notification shall contain:
(1) notice of right to a fair hearing;
(2) a simplified explanation of the definition
and purpose of a fair hearing;
(3) the method by which a fair hearing may be
requested, including the time limit; and
(4) who may represent the individual at the
fair hearing and in requesting a fair hearing.
History Note: Authority G.S. 130A‑361; 150B‑22;
7 C.F.R. 246.9; 42 U.S.C. 1786;
Eff. July 1, 1981;
Temporary Amendment Eff. July 1, 2002;
Amended Eff. July 1, 2004.
10A NCAC 43D .0905 REQUEST FOR A FAIR HEARING
(a) A request for a fair hearing is any expression that
conveys a desire to present a case contesting an action that results in an
individual's denial of participation, or disqualification from the program or a
claim against an individual for repayment of the cash value of improperly
issued Program benefits. This request may be made to any of the following:
(1) the agency official;
(2) the agency director of the local WIC
agency;
(3) the WIC director of the local WIC agency;
(4) any person serving in one of the above
three roles in the absence of the agency official, agency director or WIC
director.
(b) If the request is not made directly to the agency
official, the individual receiving the request shall immediately notify the
agency official of the request by telephone.
(c) All requests shall be documented in writing.
(1) If the original request is made in writing,
the individual receiving the request shall retain a photocopy and send the
original to the agency official immediately following the telephone call.
(2) If a verbal request is received, the
individual receiving the request shall document the request in writing,
including:
(A) the applicant's or participant's name;
(B) the name of the individual making the request:
(i) their mailing address;
(ii) telephone number; and
(iii) relation to the applicant or participant;
(C) the date of the request; and
(D) the cause for the request along with the name,
title, and signature of the person writing the documentation.
The original copy of this documentation shall be sent to the
agency official immediately following the telephone call with a copy being
retained by the sender.
(d) The request for a fair hearing may be made by the
individual affected by the action or the individual's parent, caretaker, or any
other person acting on his or her behalf.
(e) If an individual or an individual's parent, caretaker,
or any other person acting on his or her behalf expresses verbally the desire
for a fair hearing to a state or local agency staff member not authorized to
accept a request, that staff member shall provide assistance in contacting the
individuals who can accept a fair hearing request.
(f) The request for a fair hearing must be made within 60
days from the date the applicant or participant is given notice of the action.
If the notification is mailed, this time period shall begin on the date the
notification was mailed.
History Note: Authority G.S. 130A‑361; 150B‑22;
7 C.F.R. 246.9; 42 U.S.C. 1786;
Eff. July 1, 1981;
Amended Eff. November 1, 1990;
Temporary Amendment Eff. July 1, 2002;
Amended Eff. July 1, 2004.
10A NCAC 43D .0906 DENIAL OR DISMISSAL OF A REQUEST
The hearing officer shall deny or dismiss a hearing if:
(1) the request is not received within 60 days of the
date of notification of the action;
(2) the request is withdrawn in writing by the
appellant or his or her representative;
(3) the request is verbally withdrawn by the appellant
or the appellant's parent, caretaker, or any other person acting on his or her
behalf during conversation with the agency Official. Within 10 days of this
verbal withdrawal request the agency official shall send a letter to the
appellant and the local WIC agency summarizing the events which lead to the
withdrawal of the request. This letter shall include notification of the
appellant's right to reinstate the request for a fair hearing;
(4) the appellant or the appellant's parent, caretaker,
or any other person acting on his or her behalf fails to appear at the
scheduled hearing, unless the failure to appear was due to circumstances beyond
the control of the appellant or his or her representative;
(5) the request is made in reference to the tailoring
of the food package; or
(6) the initial action assessing a claim for the cash
value of improperly issued Program benefits or denying participation or
disqualifying from the program has been reversed by the local WIC agency or the
state agency, resulting in the provision of program benefits to the appellant.
History Note: Authority G.S. 130A‑361; 150B‑22;
7 C.F.R. 246.9; 42 U.S.C. 1786;
Eff. July 1, 1981;
Amended Eff. November 1, 1990;
Temporary Amendment Eff. July 1, 2002;
Amended Eff. July 1, 2004.
10A NCAC 43D .0907 CONTINUATION OF BENEFITS
(a) WIC program benefits shall be continued during the
appeal of the following actions when the request for a hearing is received
within 15 days of notification of the action:
(1) disqualification from the program for abuse
during a certification period;
(2) determination of ineligibility during a
certification period due to categorical ineligibility or residential
ineligibility; or
(3) other terminations during a certification
period.
(b) WIC program benefits shall not be continued when a fair
hearing is requested:
(1) in any of the situations in Paragraph (a)
of this Rule if the request is made more than 15 days after the date of
notification; or
(2) by applicants who are denied benefits at
the initial or subsequent determination of WIC eligibility if the previous
certification period has expired.
(c) When benefits are continued due to a request for a fair
hearing as specified above, the individual shall continue to receive benefits
until an adverse hearing decision is reached or the certification period
expires, whichever occurs first.
History Note: Authority G.S. 130A‑361; 150B‑22;
7 C.F.R. 246.9; 42 U.S.C. 1786;
Eff. July 1, 1981;
Temporary Amendment Eff. July 1, 2002;
Amended Eff. July 1, 2004.
10A NCAC 43D .0908 NOTICE OF HEARING
(a) The agency official shall notify the aggrieved party,
the local WIC agency and the Nutrition Services Branch in writing that a
request for a hearing has been received and shall appoint a time, date, and
place for the hearing within 10 days of receipt of the request.
(b) Notice shall be given to all parties at least 10 days
in advance of the hearing.
(c) The notice to the aggrieved party shall include a
stamped envelope with the return address of the agency official with a request
that it be returned indicating whether the time and place for the hearing is
satisfactory. If a response is not received at least 24 hours prior to the
time proposed for the hearing, it shall be assumed that the time and place are
satisfactory.
(d) The notice shall contain:
(1) a simplified explanation of the procedure
for the hearing;
(2) a statement of the date, hour, place and
nature of the hearing;
(3) a reference to the particular sections of
the statutes and rules involved; and
(4) a short and plain statement of the factual
allegations.
(e) If the aggrieved party indicates that he‑she
desires another time and date, the agency official shall set a new time and
date for the hearing. The hearing shall be accessible to the appellant.
(f) The hearing shall be held within three weeks from the
date of the receipt of the request.
History Note: Authority G.S. 130A‑361; 150B‑22;
7 C.F.R. 246.9; 42 U.S.C. 1786;
Eff. July 1, 1981;
Amended Eff. November 1, 1990;
Temporary Amendment Eff. July 1, 2002;
Amended Eff. July 1, 2004.
10A NCAC 43D .0909 HEARING OFFICER
The Director of the Division of Public Health shall
designate a representative who did not participate in taking the action under
appeal to be the hearing officer. The hearing officer shall:
(1) preside over the informal proceeding;
(2) ensure that all relevant issues are considered;
(3) request, receive and insert into the hearing record
all evidence determined necessary to reach a decision;
(4) conduct the meeting in accordance with due process
and ensure an orderly hearing;
(5) order, if relevant and necessary, an independent
medical assessment or professional evaluation for the appellant from a source
mutually satisfactory to all parties to the hearing; and
(6) issue a decision.
History Note: Authority G.S. 130A‑361; 150B‑22;
7 C.F.R. 246.9; 42 U.S.C. 1786;
Eff. July 1, 1981;
Amended Eff. July 1, 1995; July 1, 1987;
Temporary Amendment Eff. July 1, 2002;
Amended Eff. July 1, 2004.
10A NCAC 43D .0910 HEARING PROCEDURE AND RIGHTS OF THE
AGGRIEVED PARTY
(a) Any party to the hearing may be assisted or represented
by an attorney or other person.
(b) Any party to the hearing may examine, prior to and
during the hearing, the documents and records presented to support the action
under appeal.
(c) The hearing shall be open to the public, and the
aggrieved party and the state and local agency may have witnesses.
(d) Any party to the hearing may present any oral or
documentary evidence and arguments.
(e) Any party to the hearing may question or refute any
testimony or other evidence.
(f) Any party to the hearing may submit evidence to
establish pertinent facts and circumstances in the case.
(g) The appellant or his or her representative may obtain a
continuance by notifying the hearing officer by telephone or in writing at
least 48 hours before the original hearing date. If the appellant or
representative fails to attend the scheduled hearing without requesting a
continuance from the hearing officer by telephone or in writing at least 48
hours before the original hearing date, the appellant waives any right to a
hearing and the original action of the agency shall become final, unless the
failure to attend the hearing without requesting a continuance was due to
circumstance beyond the control of the appellant or his or her representative.
History Note: Authority G.S. 130A‑361; 150B‑22;
7 C.F.R. 246.9; 42 U.S.C. 1786;
Eff. July 1, 1981;
Amended Eff. July 1, 1987; October 1, 1985;
Temporary Amendment Eff. July 1 2002;
Amended Eff. July 1, 2004.
10A NCAC 43D .0911 DECISION
(a) The fair hearing decision shall be made by the hearing
official and shall be based only on the oral and documentary evidence presented
at the hearing and applicable state statutes and rules, and federal laws and regulations
and shall be made a part of the hearing record by the hearing officer.
(b) The hearing official shall notify in writing the
aggrieved party, any designated representative of the aggrieved party, the
local WIC agency and the Nutrition Services Branch of the decision within 45
days from the date of the request for the hearing.
(c) If the decision is in favor of the aggrieved party and
benefits were denied or discontinued, benefits shall begin within two business
days after issuance of the decision.
(d) If the decision is in favor of the agency, as soon as
administratively feasible any continued benefits shall be terminated as decided
by the hearing official.
(e) The hearing officer shall prepare a recording of
testimony and exhibits, or an official report containing the substance of what
transpired at the hearing which, together with all papers and requests filed in
the proceeding and the written fair hearing decision, shall constitute the
exclusive hearing record.
(f) The decision shall be binding on the local WIC agency.
(g) All hearing records shall be retained for three years.
(h) Upon request by any member of the public a copy of all
hearing records and decisions in a form that does not identify individuals
(appellant or local agency) shall be prepared by the Nutrition Services Branch
and be available for inspection and copying.
History Note: Authority G.S. 130A‑361; 150B‑22;
7 C.F.R. 246.9; 42 U.S.C. 1786;
Eff. July 1, 1981;
Amended Eff. December 6, 1991;
Temporary Amendment Eff. July 1, 2002;
Amended Eff. July 1, 2004.
section .1000 - CONSULTATION SERVICES
10A NCAC 43D .1001 ADMINISTRATION
History Note: Authority G.S. 130A‑361; 42 U.S.C.
1761;
Eff. February 1, 1976;
Readopted Eff. December 5, 1977;
Amended Eff. December 6, 1991; November 1, 1990;
Repealed Eff. October 1, 2009.
10A NCAC 43D .1002 RESERVED FOR FUTURE CODIFICATION
10A NCAC 43D .1003 PUBLIC HEALTH DIETITIANS
10A NCAC 43D .1004 NUTRITION PROGRAM CONSULTANTS
History Note: Authority G.S. 130A‑361;
Eff. February 1, 1976;
Readopted Eff. December 5, 1977;
Amended Eff. July 1, 1985;
Repealed Eff. October 1, 2009.
SECTION .1100 ‑ RESERVED FOR FUTURE CODIFICATION
SECTION .1200 ‑ MATERNAL AND CHILD HEALTH BLOCK GRANT
NUTRITION PROGRAM
10A NCAC 43D .1201 GENERAL
10A NCAC 43D .1202 PROVIDER ELIGIBILITY
10A NCAC 43D .1203 ALLOCATION OF FUNDS
10A NCAC 43D .1204 CLIENT ELIGIBILITY
10A NCAC 43D .1205 SCOPE OF SERVICES
10A NCAC 43D .1206 SERVICE PROVIDER QUALIFICATIONS
10A NCAC 43D .1207 PAYMENT FOR REIMBURSABLE SERVICES
History Note: Authority G.S. 130A-361;
Eff. October 1, 1993;
Repealed Eff. July 1, 2014.
