Section .0100 - Definitions

Link to law: http://reports.oah.state.nc.us/ncac/title 10a - health and human services/chapter 43 - personal health/subchapter d/subchapter d rules.html
Published: 2015

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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Repealed Eff.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.