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Oregon Bulletin

December 1, 2013

Oregon Health Authority, Public Health Division, Chapter 333

Rule Caption: WIC Participant Administration

Adm. Order No.: PH 10-2013

Filed with Sec. of State: 11-6-2013

Certified to be Effective: 12-1-13

Notice Publication Date: 9-1-2013

Rules Adopted: 333-053-0075

Rules Amended: 333-053-0030, 333-053-0040, 333-053-0050, 333-053-0060, 333-053-0080, 333-053-0100, 333-053-0110

Rules Repealed: 333-053-0070, 333-053-0090

Subject: The Oregon Health Authority, Public Health Division is permanently adopting, amending and repealing administrative rules in chapter 333, division 53 as they pertain to WIC participants. These amendments are clarifications and adjustments to definitions, eligibility, participant information, violations, claims, and administrative review language which reflect program participant administration practices in an Electronic Benefit Transfer (EBT) system.

Rules Coordinator: Brittany Sande—(971) 673-1291

333-053-0030

Description of the WIC Program

(1) The WIC program is a federally funded program established in 1972 by an amendment to the Child Nutrition Act of 1966. The purpose of the WIC program is to serve as an adjunct to health care by providing: nutrition education and counseling; nutritious supplemental foods; health screening and referral services to pregnant and breastfeeding women, infants and children in certain high-risk categories.

(2) Federal regulations governing the WIC program, 7 CFR ¦ 246, require adoption and implementation of standards and procedures to guide the state’s administration of the WIC program. These regulations also define the rights and responsibilities of participants.

(3) The Oregon Health Authority administers the WIC program in the State of Oregon.

(4) Any participant who receives benefits from the WIC program shall comply with these rules. Failure to comply with these rules shall result in sanctions.

(5) WIC program participation may include participation in the Oregon Farm Direct Nutrition Program (FDNP).

Stat. Auth.: ORS 413.500

Stats. Implemented: ORS 413.500

Hist.: PH 17-2008, f. & cert. ef. 11-5-08; PH 10-2013, f. 11-6-13, cert. ef. 12-1-13

333-053-0040

Definitions

(1) “Adjunctively income eligible” means an applicant or participant who is eligible for WIC because they are:

(a) Certified and fully eligible to receive benefits for the:

(A) Food Distribution Program on Indian Reservations (FDPIR);

(B) Supplemental Nutrition Assistance Program (SNAP);

(C) Medicaid/Oregon Health Plan (OHP); or

(D) Temporary Assistance for Needy Families (TANF); or

(b) A member of a household with:

(A) A SNAP recipient;

(B) A pregnant woman or infant currently on Medicaid/OHP;

(C) A TANF recipient; or

(D) A FDPIR recipient.

(2) “Appeal” means review of an agency decision by a neutral third party.

(3) “Applicant” means any pregnant woman, post-partum woman, infant or child who is applying to receive WIC program benefits, and a breastfed infant of an applicant breastfeeding woman. Applicants include individuals who are currently participating in the program but are re-applying because their certification period is about to expire.

(4) “Authority” means the Oregon Health Authority.

(5) “Authorized food” means any supplemental foods approved by the Oregon WIC program and listed on the WIC Authorized Food List or food instrument.

(6) “Authorized shopper” means:

(a) The participant or any person designated by a participant who has been documented as such to act on the participant’s behalf; and

(b) In the case of an infant or child, the caretaker or the caretaker’s designee; or

(c) Any representative of the Authority posing as a participant or participant designee as authorized by the Authority.

(7) “Cardholder” means the person authorized by the WIC program to use the eWIC card to purchase WIC food benefits at WIC-authorized vendors.

(8) “Cash Value Benefit” or “CVB” means a fixed-dollar benefit on a check, voucher, electronic benefit transfer (EBT) card or other document which is used by an authorized shopper to obtain WIC authorized fruits and vegetables.

(9) “Certification” means the implementation of criteria and procedures to assess and document each applicant’s eligibility for participation in the WIC program.

(10) “CFR” means Code of Federal Regulations.

(11) “Claim” means a demand for repayment for intentional misuse of WIC or FDNP benefits.

(12) “CSFP” means the Commodity Supplemental Food Program.

(13) “Disqualification” means termination of participation in the WIC program and cessation of WIC benefits due to a participant violation for a specific amount of time.

(14) “Dual participation” means simultaneous participation in more than one WIC program (more than one state or more than one local agency within Oregon) or participation in the WIC program and in the CSFP at the same time.

(15) “Electronic benefit account” or “EBA” means an account established for a WIC household administered by Oregon’s eWIC banking contractor and where food benefits for all participants in the household are aggregated into that single account.

(16) “eWIC card” means the electronic benefit transfer (EBT) card used by cardholders to purchase WIC authorized foods or formulas from their electronic benefit account (EBA).

(17) “Fair hearing” means a proceeding before an administrative law judge to review actions proposed by the Authority.

(18) “Farm Direct Nutrition Program” or “FDNP” means the Farmers’ Market Nutrition Program administered by the United States Department of Agriculture (USDA), Food and Nutrition Services and implemented by the State of Oregon, Oregon Health Authority.

(19) “First cardholder” means the required cardholder for an electronic benefit account. The first cardholder is either the woman participant or the parent or caretaker from the same household as the infant or child participant therefore sharing the same address.

(20) “Food instrument” means a WIC program voucher, check, coupon, electronic benefit transfer (EBT) card, or other document which is used to obtain authorized foods.

(21) “Hearing request” or “request for a hearing” means any clear expression by an individual, or the individual’s parent, caretaker or representative, that he or she desires an opportunity to present his or her case to a higher authority.

(22) “Local agency” means:

(a) A public or private non-profit health or human services agency that provides health services, either directly or through contract with the Authority to provide services, in accordance with 7 CFR ? 246.5;

(b) An Indian Health Service unit in contract with the Authority to provide services;

(c) An Indian tribe, band or group recognized by the Department of the Interior that operates a health clinic or is provided health services by an Indian Health Service unit; or

(d) An intertribal council or group that is an authorized representative of Indian tribes, bands or groups recognized by the Department of the Interior that operates a health clinic or is provided health services by an Indian Health Service unit.

(23) “Notice of Non-compliance” means a letter notifying participants, parents or caretakers of an infant or child participant when they commit a program violation. This notice is an explanation of the violation and a warning about repercussions of subsequent violations.

(24) “Participant” means any pregnant woman, breastfeeding woman, post-partum non-lactating woman, infant or child who has been certified to receive benefits from the WIC program.

(25) “Participant’s caretaker” means a person who has significant responsibility for providing food to the infant or child. The caretaker is usually part of the family unit, for example the parent or legal guardian of the infant or child.

(26) “Restitution” means reimbursement to the Authority of the cash value of WIC program benefits received by a participant as a result of a violation.

(27) “Sanction” means a penalty imposed by the state WIC program because of a violation.

(28) “Second cardholder” means an individual authorized on a WIC electronic benefit account who has been issued their own eWIC card with the permission of the first cardholder.

(29) “Service area” means a local program or subdivision of a local agency that encompasses a specific geographic area.

(30) “Termination” means a participant’s file is closed and WIC program benefits cease for any reason including, but not limited to, lack of eligibility, no longer breastfeeding, or transferring out of state, and participant violations.

(31) “Trafficking” means the buying or selling of a WIC food instrument for cash.

(32) “Violation” means any intentional action of a participant, parent or caretaker of an infant or child participant, or any eWIC cardholder that violates federal or state statutes, regulations, policies or procedures governing the WIC program.

(33) “WIC program” or “WIC” means the Special Supplemental Nutrition Program for Women, Infants and Children authorized by Section 17 of the Federal Child Nutrition Act of 1966, as amended, 42 U.S.C. ? 1786.

(34) “WIC program benefits” mean benefits a participant receives that includes but are not limited to food, formula, and breast pumps.

Stat. Auth.: ORS 413.500

Stats. Implemented: ORS 413.500

Hist.: PH 17-2008, f. & cert. ef. 11-5-08; PH 5-2011(Temp), f. & cert. ef. 7-1-11 thru 12-27-11; PH 11-2011, f. & cert. ef. 10-27-11; PH 10-2013, f. 11-6-13, cert. ef. 12-1-13

333-053-0050

Participant Eligibility

(1) In order to be eligible for the WIC program, at the time of application an applicant must:

(a) Be a pregnant woman, a breastfeeding woman less than one year after delivery, a non-lactating, post-partum woman less than six months after delivery, or a child through the end of the month he or she turns five years of age;

(b) Reside within the jurisdiction of the State of Oregon and either reside within the local agency service area or within the Indian State jurisdiction;

(c) Meet the state’s income eligibility criteria at the time of application; and

(d) Be at nutritional risk as defined by the Authority.

(2) In order to establish eligibility, a state or local agency shall require proof of residency, identity, and income and may require verification of pregnancy.

(3) Participants may only be enrolled in one local agency or clinic within a local agency in Oregon at a time.

(4) Participants may be enrolled in only one state WIC program at a time. If a participant moves to a new state they are no longer eligible to receive Oregon WIC program benefits.

(5) A participant may be terminated from the WIC program because they are no longer eligible.

(6) A participant may be disqualified from the WIC program for violations of program rules.

(7) A participant may voluntarily withdraw from participating in the WIC program at any time.

(8) A participant is eligible to receive FDNP benefits if the individual meets all of the following eligibility criteria on the date of FDNP benefit issuance:

(a) Is currently receiving benefits under the WIC program; and

(b) Belongs to any eligible WIC category described in subsection (1)(a) of this rule; and

(c) Is four months of age or older.

(9) A participant will be informed of and required to verify that he or she understands the rights and responsibilities of WIC participation at the time of their eligibility certification.

Stat. Auth.: ORS 413.500

Stats. Implemented: ORS 413.500

Hist.: PH 17-2008, f. & cert. ef. 11-5-08; PH 10-2013, f. 11-6-13, cert. ef. 12-1-13

333-053-0060

Participant Information

(1) Applicants shall provide accurate information as part of the certification process.

(2) State or local WIC staff may verify any of the information provided by the applicant, participant, or participant’s caretaker.

(3) The WIC program may share information about applicants and participants with other public health programs and Oregon Head Start programs. This information will only be used to access other health services and assess the effectiveness of those services.

(4) Information concerning eligibility shall be shared with another WIC clinic or local agency if the participant moves from one service area to another or to a different state.

(5) Applicants, participants and the participant’s caretakers will be given the opportunity to register to vote at the local agency, and they may decline to provide this information. Receipt of WIC program benefits will not be affected by answers to voter registration questions.

Stat. Auth.: ORS 413.500

Stats. Implemented: ORS 413.500

Hist.: PH 17-2008, f. & cert. ef. 11-5-08; PH 10-2013, f. 11-6-13, cert. ef. 12-1-13

333-053-0075

eWIC Cards

(1) At the time of certification, a first cardholder will be identified and issued a eWIC card for the family.

(a) If a family requires more than one authorized shopper, a second eWIC card for use by the family’s second cardholder will be issued.

(b) Each family will have no more than two activated eWIC cards at a time.

(c) No more than one activated eWIC card can be assigned to a cardholder at a time.

(2) The Authority may issue replacement eWIC cards at its discretion.

Stat. Auth.: ORS 413.500

Stats. Implemented: ORS 413.500

Hist.: PH 10-2013, f. 11-6-13, cert. ef. 12-1-13

333-053-0080

Participant Violations

(1) During each certification visit, participants shall be informed of their rights and responsibilities, program rules and the sanctions issued should they intentionally violate a program rule.

(2) Whenever the Authority assesses a claim of misappropriated WIC program benefits of $100 or more resulting from a participant violation, assesses a claim for dual participation, or assesses a second or subsequent claim of any amount resulting from a participant violation, the Authority shall disqualify the participant for one year.

(3) A participant shall be issued a Notice of Non-compliance for the first instance; a six month disqualification from the program and issued a claim for the second instance; and a one year disqualification from the program and issued a claim for the third and any subsequent instance of the following violations:

(a) Simultaneously using his or her own WIC benefits and acting as a store cashier for the transaction if employed by or owns store;

(b) Destruction of vendor or farmer property during a WIC transaction;

(c) Verbal abuse of store, farmer, or farm stand employees or owners during a WIC or FDNP transaction;

(d) Verbal abuse of state or local agency staff;

(e) Destruction of state or local agency property;

(f) Altering a food instrument;

(g) Failing to notify local agency staff of change of eligibility information;

(h) Returning foods purchased with a food instrument to a WIC vendor in exchange for money or different food unless they are receiving the identical item in exchange;

(i) Attempting to use a food instrument reported lost or stolen; or

(j) Redeeming a food instrument for unauthorized foods or formula.

(4) A participant shall be issued a Notice of Non-compliance and issued a claim for the first instance; and disqualified from the program for one year and issued a claim for the second and any subsequent instance of misrepresenting eligibility information to gain WIC or FDNP benefits.

(5) A participant shall be disqualified from the program for six months for the first instance and disqualified from the program for one year for the second or any subsequent instance of the following violations:

(a) Assaulting or using physical force, actual or threatened, against store, farmer, or farm stand employees or owners during a WIC or FDNP transaction; or

(b) Assaulting or using physical force, actual or threatened, against state or local agency staff.

(6) A participant shall be disqualified from the program for one year and issued a claim for the first and any subsequent instance of the following violations:

(a) Collusion with local agency staff to improperly obtain WIC program or FDNP benefits;

(b) Collusion with store staff to use a food instrument for the purchase of anything other than specifically indicated WIC program benefits;

(c) Theft of a food instrument;

(d) Buying, attempting to buy, exchanging, attempting to exchange, selling, or attempting to sell food or formula purchased with a food instrument for credit, merchandise, favors, or other non-food items;

(e) Trafficking a food instrument; or

(f) Collusion with store staff to accept the return of food or formula purchased with a food instrument for cash, credit, merchandise, favors, or other non-food items.

(7) The Authority may decide not to impose a disqualification if, within 30 days of the date the letter was mailed demanding repayment, full restitution is made or a repayment schedule is agreed upon. In the case of a violation committed by the parent or caretaker of an infant or child participant, or by a participant under the age of 18, the Authority may approve the designation of a proxy in order to continue program benefits to these participants.

(8) Participants may reapply for benefits at any time after the disqualification period is over.

Stat. Auth.: ORS 413.500

Stats. Implemented: ORS 413.500

Hist.: PH 17-2008, f. & cert. ef. 11-5-08; PH 10-2013, f. 11-6-13, cert. ef. 12-1-13

333-053-0100

Participant Claims

(1) If the Authority determines that WIC program benefits have been obtained, sold, given away, traded, or otherwise disposed of improperly as the result of a participant violation, the Authority shall establish a claim against the participant for the full value of such benefits.

(2) For all participant claims, the Authority shall issue a written notification demanding repayment.

(3) If the full restitution is not made or a repayment schedule is not agreed on within 30 days of the date the letter was mailed, the Authority shall take additional collection actions until restitution is made or a repayment schedule is agreed on, unless the Authority determines that further collection actions would not be cost-effective to pursue.

Stat. Auth.: ORS 413.500

Stats. Implemented: ORS 413.500

Hist.: PH 17-2008, f. & cert. ef. 11-5-08; PH 10-2013, f. 11-6-13, cert. ef. 12-1-13

333-053-0110

Administrative Review

(1) The Authority shall provide a participant with a fair hearing in accordance with the provision of ORS chapter 183 and 7 CFR 246.9 for the following:

(a) Denial of participation;

(b) Disqualification; or

(c) A claim against the individual for repayment of the cash value of improperly obtained or disposed of WIC program benefits.

(2) The Authority shall notify the participant in writing of the right to a fair hearing, of the method by which a hearing may be requested, and that any positions or arguments on behalf of the individual may be presented personally or by a representative such as a relative, friend, legal counsel or other spokesperson.

(3) The Authority shall not limit or interfere with the participant’s freedom to request a hearing.

(4) Participants must request a fair hearing within 60 days from the date the Authority notifies the applicant or participant of an adverse action.

(5) The Authority shall not deny or dismiss the request for a fair hearing unless:

(a) The request is not received within 60 days;

(b) The request is withdrawn in writing by the participant or participant’s representative;

(c) The participant or the participant’s representative fails, without good cause, to appear at the scheduled hearing; or

(d) The participant has been denied participation by a previous hearing and cannot provide evidence that the circumstances relevant to program eligibility have changed in such a way as to justify a hearing.

(6) Participants may continue receiving WIC benefits pending a hearing outcome or their certification period expires, whichever comes first.

(7) Applicants who are denied benefits at initial certification, participants whose certification periods have expired, and participants who become categorically ineligible during a certification period may request an administrative hearing to appeal the denial or termination of WIC program benefits, however they shall not receive WIC program benefits while awaiting the hearing or its outcome.

Stat. Auth.: ORS 413.500

Stats. Implemented: ORS 413.500

Hist.: PH 17-2008, f. & cert. ef. 11-5-08; PH 10-2013, f. 11-6-13, cert. ef. 12-1-13


Rule Caption: WIC Vendor and Farmer Administration

Adm. Order No.: PH 11-2013

Filed with Sec. of State: 11-6-2013

Certified to be Effective: 12-1-13

Notice Publication Date: 9-1-2013

Rules Adopted: 333-054-0033

Rules Amended: 333-054-0000, 333-054-0010, 333-054-0020, 333-054-0025, 333-054-0027, 333-054-0030, 333-054-0035, 333-054-0040, 333-054-0050, 333-054-0055, 333-054-0060, 333-054-0065, 333-054-0070

Subject: The Oregon Health Authority, Public Health Division is permanently adopting and amending administrative rules in chapter 333, division 54 as they pertain to vendors and farmers that are authorized by the Oregon WIC Program. These amendments are clarifications and adjustments to definitions, authorization requirements, agreements, incentive items, monitoring specifications, and violations and sanctions language which reflect program vendor and farmer administration practices in an Electronic Benefit Transfer (EBT) system.

Rules Coordinator: Brittany Sande—(971) 673-1291

333-054-0000

Description of WIC Program

(1) The WIC Program is a federally funded program established in 1972 by an amendment to the Child Nutrition Act of 1966. The purpose of the WIC Program is to serve as an adjunct to health care by providing: nutrition education and counseling; nutritious supplemental foods; and health screening and referral services to pregnant and breast-feeding women, infants, and children in certain high-risk categories.

(2) Federal regulations governing the WIC Program, 7 CFR ¦ Part 246, require adoption and implementation of standards and procedures to guide the state’s administration of the WIC Program. These regulations also define the rights and responsibilities of vendors and farmers.

(3) The WIC Program in the State of Oregon is administered by the Oregon Health Authority (Authority).

[Publications: Publications referenced are available from the agency.]

Stat. Auth.: ORS 413.500

Stats. Implemented: ORS 413.500

Hist.: HD 7-1993, f. & cert. ef. 6-11-93; OHD 17-2001, f. 8-02-01, cert. ef. 8-15-01; OHD 22-2002, f. & cert. ef. 12-24-02; PH 19-2003(Temp), f. & cert. ef. 11-14-03 thru 5-12-04; PH 22-2003, f. 12-31-03, cert. ef. 1-5-04; PH 30-2006, f. & cert. ef. 12-27-06; PH 11-2013, f. 11-6-13, cert. ef. 12-1-13

333-054-0010

Definitions

(1) “A50” means an authorized vendor or applicant that derives, or is expected to derive, more than 50 percent of its total annual food sales from WIC food sales. The total food sales do not include alcohol, tobacco, lottery or any other non-food item.

(2) “Abbreviated administrative review” means a hearing that is held at the request of a vendor that has been issued an application denial, civil money penalty, civil penalty, or sanction by the Authority. Abbreviated reviews are facilitated by the Authority staff other than the staff person that imposed the sanction. A facilitated discussion is held in order to resolve the imposition of a sanction.

(3) “Adequate participant access” means there are authorized vendors sufficient for participant need using Authority criteria in OAR 333-054-0060.

(4) “Annual Food Sales” means sales of all Supplemental Nutrition Assistance Program (SNAP) eligible foods intended for home preparation and consumption including meat, fish, and poultry; bread and cereal products; dairy products; and fruits and vegetables. Food items such as condiments and spices, coffee, tea, cocoa, and carbonated and non-carbonated drinks may be included in food sales when offered for sale along with foods in the categories identified above. Food sales do not include sales of any items that cannot be purchased with SNAP benefits, such as hot foods or food that will be eaten in the store.

(5) “Applicant” means any person, or person with an interest in the business, making a written request for authorization to participate in the WIC Program, including vendors and farmers that reapply for authorization.

(6) “Authority” means the Oregon Health Authority.

(7) “Authorization” means the process by which the Authority assesses, selects, and enters into agreements with stores and farmers that apply or subsequently reapply to be vendors or authorized farmers.

(8) “Authorized food” means any supplemental foods approved by the Oregon WIC Program and listed on the WIC Authorized Food List or food instrument.

(9) “Authorized shopper” means the participant or any person designated by a participant who has been documented as such to act on the participant’s behalf and, in the case of an infant or child, the caretaker or the caretaker’s designee. This includes any representative posing as a participant or participant designee as authorized by the Authority.

(10) “CFR” means Code of Federal Regulations.

(11) “CMP” means civil money penalty.

(12) “Cash Value Benefit” or “CVB” means a fixed-dollar benefit on a check, voucher, electronic benefit transfer (EBT) card or other document which is used by an authorized shopper to obtain WIC authorized fruits and vegetables.

(13) “Compliance buy” means a single covert, on-site visit in which an Authority authorized representative poses as an authorized shopper and attempts to transact, or transacts, one or more food instruments.

(14) “Disqualification” means cancelling the WIC program participation of a vendor or farmer, as a punitive action.

(15) “Educational buy” means a single, on-site visit used for training purposes in which an Authority authorized representative poses as an authorized shopper, redeems WIC food instruments, and provides the vendor with immediate feedback about compliance with WIC procedures.

(16) “Farmer” means an individual who owns, leases, rents or sharecrops land to grow, cultivate or harvest crops on that land.

(17) “Farmer agreement” means a standard written legal contract between the farmer and the Authority that sets forth responsibilities of the parties.

(18) “FNS” means the Food and Nutrition Service of the U. S. Department of Agriculture.

(19) “Food instrument” or “FI” means a WIC Program voucher, check, coupon, electronic benefit transfer (EBT) card or other document, which is used to obtain authorized foods.

(20) “Full administrative review” means a formal hearing that is held before an assigned administrative law judge from the state Office of Administrative Hearings in accordance with 7 CFR ¦ 246.18 and ORS Chapter 183.

(21) “Incentive item” means a food or non-food item offered free of charge to WIC shoppers, but not other shoppers, or eligibility to receive an item is structured where the majority of those meeting the criteria are WIC shoppers, to motivate them to shop at a particular store. Examples of incentive items include, but are not limited to, cash gifts/prizes in any amount for any reason, lottery tickets, transportation, sales/specials such as a buy-one-get-one free or free additional ounces offer not offered to other shoppers, and other free food or merchandise not offered to other shoppers.

(22) “Inventory audit” means an examination of food invoices or other proofs of vendor purchases to determine whether a vendor has purchased sufficient quantities of authorized foods to support the vendor’s claim for reimbursement for such foods from the Authority during a specific period of time.

(23) “Investigation” means a period of review, beginning with the start of an inventory audit or the first compliance buy and closing when the audit has been completed or a sufficient number of compliance buys have been completed to provide evidence of compliance or non-compliance, not to exceed 24 months, to determine a vendor or farmer’s compliance with program rules and procedures.

(24) “Local agency” means:

(a) A public or private non profit health or human services agency that provides health services, either directly or through contract, in accordance with 7 CFR ¦ 246.5;

(b) An Indian Health Service unit;

(c) An Indian tribe, band or group recognized by the Department of the Interior which operates a health clinic or is provided health services by an Indian Health Service unit; or

(d) An intertribal council or group that is an authorized representative of Indian tribes, bands or groups recognized by the Department of the Interior, which operates a health clinic or is provided health services by an Indian Health Service unit.

(25) “Notice of Non-compliance” means a letter notifying vendors when they commit a program violation. This notice is an explanation of the violation and a warning about repercussions of subsequent violations.

(26) “Overcharge” means intentionally or unintentionally charging the Authority more for authorized foods than the actual shelf price or the price charged to other shoppers.

(27) “Participant” means any pregnant woman, breastfeeding woman, post-partum non-lactating woman, infant or child who has been certified to receive benefits from the WIC Program.

(28) “Pattern” means three or more findings of the same rule violation that occurs within a single investigation or over the course of one or more routine monitoring(s).

(29) “Peer group” means a group of vendors considered to be in the same category by the Authority based on factors such as store type, size or business model, number of cash registers and geography.

(30) “Person” means a human being, a public or private corporation, an unincorporated association, a partnership, a Limited Liability Corporation, a sole proprietor, a government or a governmental instrumentality.

(31) “Person with an interest in the business” means an officer, director, partner, or manager of the business or a shareholder with 10 percent interest or more in the business.

(32) “Pharmacy – in-store” means a pharmacy that is located within a WIC authorized grocery store and is affiliated with that business entity.

(33) “Pharmacy – stand alone” means a pharmacy that is operated independently from or is not located in a WIC authorized grocery store.

(34) “Price adjustment” means an adjustment made by the Authority, in accordance with the vendor/farmer agreement, to the amount paid to the vendor/farmer on a food purchase, to ensure that the payment complies with the Authority price limitations.

(35) “Prominently displayed” means immediately noticeable by persons entering the vendor or farmer location.

(36) “Routine monitoring” means an overt, on-site visit in which the Authority authorized representatives or federal officials identify themselves to vendor or farm personnel.

(37) “Shelf Price Survey” or “SPS” means a tool used by the Authority to collect a sample of a WIC authorized vendor’s current shelf prices.

(38) “SNAP” means the Supplemental Nutrition Assistance Program of the Food and Nutrition Services of the U.S. Department of Agriculture. This program was formerly known as the Food Stamp Program or “FSP.”

(39) “Termination” means the cancellation of a vendor or farmer agreement which may or may not be linked to a disqualification.

(40) “Trafficking” means buying or selling WIC food instruments for cash.

(41) “U.S.C.” means United States Code.

(42) “Unauthorized food item” means foods, brands and sizes not allowed on the WIC Authorized Food List. It also means foods not specified on a food instrument as eligible for purchase for that participant, with WIC benefits.

(43) “Vendor” means the current owner(s) or any person with an interest in the business, of any retail store location that is currently authorized by the Authority to participate in the WIC Program. Vendor may also refer to the authorized store location.

(44) “Vendor agreement” means a standard written legal contract between the vendor and the Authority that sets forth responsibilities of the parties.

(45) “Vendor Price List” means a form containing current authorized foods with current shelf prices completed by the vendor and submitted to the Authority and in which vendors document their shelf prices at the time of the application process.

(46) “Violation” means an activity that is prohibited by OAR 333-054-0000 through 333-054-0070 and is classified in OAR 333-054-0050 and 333-054-0055.

(47) “WIC Authorized Food List” means the supplemental foods approved by the State of Oregon.

(48) “WIC food benefit” means supplemental foods issued to a participant for purchase at an authorized vendor.

(49) “WIC Program” or “WIC” means the Special Supplemental Nutrition Program for Women, Infants and Children (WIC) authorized by Section 17 of the Federal Child Nutrition Act of 1966, as amended, 42 U.S.C. ¦ 1786.

[Publications: Publications referenced are available from the agency.]

Stat. Auth.: ORS 413.500

Stats. Implemented: ORS 413.500

Hist.: HD 7-1993, f. & cert. ef. 6-11-93; HD 31-1994, f. & cert. ef. 12-22-94; OHD 17-2001, f. 8-02-01, cert. ef. 8-15-01; OHD 22-2002, f. & cert. ef. 12-24-02; PH 19-2003(Temp), f. & cert. ef. 11-14-03 thru 5-12-04; PH 22-2003, f. 12-31-03, cert. ef. 1-5-04; PH 7-2005(Temp), f. & cert. ef. 5-2-05 thru 10-28-05; PH 16-2005, f. & cert. ef. 10-28-05; PH 30-2006, f. & cert. ef. 12-27-06; PH 5-2009, f. & cert. ef. 6-1-09; PH 5-2011(Temp), f. & cert. ef. 7-1-11 thru 12-27-11; PH 9-2011, f. & cert. ef. 9-30-11; PH 11-2013, f. 11-6-13, cert. ef. 12-1-13

333-054-0020

How a Vendor Becomes WIC Authorized

(1) Only vendors authorized by the Authority may accept Oregon food instruments in exchange for authorized foods.

(2) Application:

(a) An applicant shall submit a completed application to the Authority, which includes:

(A) An application form;

(B) A Vendor Price List;

(C) A current SNAP authorization number; and

(D) Any other documents or information required by the Authority.

(b) The Authority may limit the periods during which applications for vendor authorization will be accepted and processed. The Authority will process applications, outside of the limited application period, if it determines the applicant’s store is necessary to ensure adequate participant access in a specific geographic location.

(c) The Authority may impose a moratorium on the authorization of new vendors. Notice will be provided to current vendors prior to such a moratorium. During the period of moratorium the Authority may choose to not accept applications, not process applications, and not to authorize new stores. A moratorium will not apply to a store that is necessary for participant access.

(3) Selection Criteria: In order for the Authority to consider authorizing an applicant, the applicant shall:

(a) Demonstrate and maintain competitive pricing as determined by the Authority based on the applicant’s current existing shelf prices on the date of application, as charged to regular shoppers and as compared to data from the peer group appropriate to the applicant’s characteristics. Such data may include redemption prices and shelf prices. If an applicant’s store is necessary to ensure adequate participant access, it may be exempt from this requirement;

(b) Possess a current bank account number;

(c) Possess a current electronic mail address;

(d) Not have, within the previous six years, a criminal conviction or civil judgment involving fraud or any other offense related to the applicant’s business integrity or honesty;

(e) Possess a current SNAP authorization number. Pharmacies, military commissaries, and stores that are determined by the Authority as necessary to provide adequate participant access shall be exempt from this selection requirement due to the nature of the services they provide for the WIC Program;

(f) Not have a history of serious violations with either the WIC Program or SNAP;

(g) Not be currently disqualified from participation in another state’s WIC Program. The Authority shall not authorize an applicant that has been assessed a CMP in lieu of disqualification by another state WIC Program until the period of the disqualification that would otherwise have been imposed has expired;

(h) Not be currently disqualified from participation in the SNAP. The Authority shall not authorize an applicant that has been assessed a SNAP civil money penalty in lieu of disqualification until the period of the disqualification that would otherwise have been imposed has expired unless this store has been determined necessary for participant access;

(i) Have a fixed location for each store that includes refrigeration and freezer equipment in the retail area;

(j) Carry foods intended for home preparation and consumption, in addition to WIC-required minimum stock items, that include:

(A) Fresh or frozen uncooked meat, fish, or poultry (or meat substitute);

(B) Bread and cereal products;

(C) Dairy products; and

(D) Fresh fruits and vegetables.

(k) Meet minimum stock requirements at the time of application to become an authorized vendor:

(A) A store that is applying for authorization must meet minimum stock requirements at the time of application, either on the shelf or with proof of order at the time of the on-site review;

(B) Stand-alone pharmacies and in-store pharmacies shall obtain infant formula, including formula that requires a prescription, within 72 hours of an Authority, local agency or WIC shopper request;

(C) Stand-alone pharmacies and in-store pharmacies are exempt from minimum stock requirements; and

(D) Grocery stores with in-store pharmacies are required to meet all minimum stock requirements.

(l) Purchase infant formula, which is to be sold to WIC shoppers, only from the Oregon WIC Program’s list of approved manufacturers, wholesalers, distributors, and WIC-authorized retailers. Vendors must maintain and provide, when requested, documentation showing source(s) of infant formula purchases;

(m) Maintain and provide documentation of SNAP-eligible food sales throughout the contract period. According to USDA, CFR 245.2, “Food sales” means sales of all foods that are eligible items under the SNAP. These foods are intended for home preparation and consumption and include:

(A) Meat, fish, and poultry;

(B) Bread and cereal products;

(C) Dairy products; and

(D) Fruits and vegetables;

(E) Food items such as condiments and spices, coffee, tea, cocoa, and carbonated and noncarbonated beverages may be included in food sales when offered for sale along with foods in the four primary categories. Food sales do not include sales of any items that are not approved for purchase with SNAP benefits, such as alcoholic beverages, hot foods, or foods that will be eaten on the store premises; and

(n) Be open for business at least eight hours per day for five days per week.

(4) Authorization Requirements:

(a) The Authority or its designated representative shall conduct a documented on-site visit prior to, or at the time of, authorization of an applicant, including evaluating the inventory and condition of authorized foods and providing the applicant with the WIC Program information prior to or at the time of authorization;

(b) The Authority may grant a written exception to minimum stock requirements for cases where there is no participant need in the vendor’s area for a specific authorized food item. The Authority shall determine participant need based on:

(A) Local agency’s input regarding a vendor request for exception;

(B) Vendor redemption data relative to the vendor’s request; and

(C) Number of participants prescribed the specific food item in the vendor’s store’s zip code.

(c) If a vendor with a stock exception is notified of a specific need for that authorized food item, the vendor will ensure that the authorized food item is available within seven days of the request.

(d) Once authorized, the vendor shall remain in compliance with the current selection criteria set forth in OAR 333-054-0020(3) for the duration of the vendor agreement.

(5) Application Denials: The Authority shall give the applicant written notification of denial, in conformance with ORS chapter 183. As otherwise provided in these rules, the Authority may deny an applicant authorization for reasons including, but not limited to, the following:

(a) The applicant’s failure to meet the selection criteria;

(b) The applicant’s store or business has been sold by its previous owner in an attempt to circumvent a WIC program sanction. In making this determination, the Authority may consider such factors as whether the applicant’s store or business was sold to a relative by blood or marriage of the previous owner(s) or sold to any person for less than its fair market value;

(c) The applicant’s history of complaints, violations and sanctions;

(d) The applicant’s refusal to accept training from the WIC program;

(e) The applicant’s submission of prices to the Authority for WIC foods that are not the actual prices being charged to current customers;

(f) The applicant’s submission of prices to the Authority for WIC foods that the vendor does not stock in the store;

(g) The applicant’s failure to complete an application within an Authority-specified period of time, after notification of the application’s deficiencies; or

(h) The applicant’s misrepresentation of information on the application.

(6) Subsequent to authorization, an agreement may be terminated if it is found that the vendor provided false or omitted pertinent information during the authorization process.

(7) If the Authority denies an application it may require the applicant to wait some period of time before reapplying.

Stat. Auth.: ORS 413.500

Stats. Implemented: ORS 413.500

Hist.: HD 7-1993, f. & cert. ef. 6-11-93; OHD 17-2001, f. 8-02-01, cert. ef. 8-15-01; OHD 22-2002, f. & cert. ef. 12-24-02; PH 19-2003(Temp), f. & cert. ef. 11-14-03 thru 5-12-04; PH 22-2003, f. 12-31-03, cert. ef. 1-5-04; PH 7-2005(Temp), f. & cert. ef. 5-2-05 thru 10-28-05; PH 16-2005, f. & cert. ef. 10-28-05; PH 16-2006(Temp), f. 6-30-06, cert. ef. 7-1-06 thru 12-27-06; PH 30-2006, f. & cert. ef. 12-27-06; PH 5-2009, f. & cert. ef. 6-1-09; PH 9-2011, f. & cert. ef. 9-30-11; PH 11-2013, f. 11-6-13, cert. ef. 12-1-13

333-054-0025

Above 50% Vendors (A50)

(1) An applicant that is likely to derive more than 50 percent of the store’s annual food sales from WIC transactions will not be authorized except for cases of participant access hardship as determined solely by the Authority.

(2) If a currently authorized vendor is found to derive more than 50 percent of the store’s annual food sales from WIC transactions the Authority will terminate the vendor agreement unless the vendor is necessary for participant access.

Stat. Auth.: ORS 413.500

Stats. Implemented: ORS 413.500

Hist.: PH 30-2006, f. & cert. ef. 12-27-06; PH 5-2009, f. & cert. ef. 6-1-09; PH 9-2011, f. & cert. ef. 9-30-11; PH 11-2013, f. 11-6-13, cert. ef. 12-1-13

333-054-0027

How a Farmer Becomes WIC Authorized

(1) Only authorized farmers may accept CVBs from authorized shoppers in exchange for eligible foods. Authorized farmers may not accept CVBs from unauthorized farmers.

(2) In order to be eligible for participation in the WIC program, a farmer applicant must:

(a) Grow, cultivate, or harvest fresh fruits or vegetables in Oregon or a bordering county in a contiguous state to sell at a farmers’ market or farm stand. Farmers are exempt from the minimum WIC authorized food stocking requirements as indicated for vendor authorization under OAR 333-054-0020(3);

(b) Complete the farmer application and return it to the appropriate state office to verify eligibility; and

(c) Agree to follow the terms and conditions of the farmer agreement.

(3) The Authority shall conduct an interactive training for all farmers who have never previously participated in the program prior to their commencing participation.

(4) The Authority and the WIC program are not required to authorize all applicants.

(5) Any individual who purchases all the produce they plan to sell is considered a distributor and is not allowed to participate in the WIC program as a farmer.

Stat. Auth.: ORS 413.500

Stats. Implemented: ORS 413.500

Hist.: PH 5-2009, f. & cert. ef. 6-1-09; PH 9-2011, f. & cert. ef. 9-30-11; PH 11-2013, f. 11-6-13, cert. ef. 12-1-13

333-054-0030

Vendor Agreements

(1) Each applicant who has been approved for authorization shall sign a vendor agreement.

(a) The vendor agreement shall include the contractual obligations that must be met by an authorized vendor.

(b) Failure to adhere to the vendor agreement is a violation and may result in a sanction.

(c) The vendor agreement shall be signed by a representative of the Authority and a representative of the vendor who has the legal authority to sign the vendor agreement and obligate the applicant to the terms of the vendor agreement.

(d) The term of a vendor agreement shall not exceed three years.

(2) The Authority shall provide a vendor with not less than 15 days advance written notice of the expiration of its vendor agreement.

(3) The Authority shall immediately terminate the vendor agreement if it determines that the vendor has provided false information in connection with its application for authorization.

(4) When a vendor has more than one store location, the vendor agreement shall include a list of each store’s name and location. Individual store locations may be added or deleted, by amendment to the vendor agreement or disqualification of an individual store location, without affecting the remaining store locations. Each store location included in the vendor agreement shall meet all applicable laws and rules.

(5) The vendor agreement does not constitute a license or property interest.

(6) The vendor agrees to comply with terms in a final order issued by the Authority or an investigation by federal or state officials.

(7) A vendor shall provide the Authority or a federal official access to food instruments negotiated on requested dates.

[Publications: Publications referenced are available from the agency.]

Stat. Auth.: ORS 413.500

Stats. Implemented: ORS 413.500

Hist.: HD 7-1993, f. & cert. ef. 6-11-93; OHD 17-2001, f. 8-2-01, cert. ef. 8-15-01; OHD 22-2002, f. & cert. ef. 12-24-02; PH 19-2003(Temp), f. & cert. ef. 11-14-03 thru 5-12-04; PH 22-2003, f. 12-31-03, cert. ef. 1-5-04; PH 7-2005(Temp), f. & cert. ef. 5-2-05 thru 10-28-05; PH 16-2005, f. & cert. ef. 10-28-05; PH 16-2006(Temp), f. 6-30-06, cert. ef. 7-1-06 thru 12-27-06; PH 30-2006, f. & cert. ef. 12-27-06; PH 5-2009, f. & cert. ef. 6-1-09; PH 11-2013, f. 11-6-13, cert. ef. 12-1-13

333-054-0033

Provision of Incentive Items

(1) Vendors shall not provide or advertise the provision of incentive items to WIC shoppers that are not offered to other shoppers.

(2) The Authority may approve any of the following incentive items to be provided by authorized vendors to WIC shoppers, at the discretion of the Authority:

(a) Food, merchandise, or services obtained at no cost to the vendor, subject to documentation;

(b) Food, merchandise, or services with a nominal value of $2 or less per item, which is subject to documentation;

(c) Food sales and specials which involve no cost or less than $2 in cost to the vendor for the food items involved, subject to documentation, and do not result in a charge to a WIC food instrument for foods in excess of the foods listed on the food instrument; and

(d) Minimal customary courtesies of the retail food trade, such as helping the shopper to obtain an item from a shelf or from behind a counter, bagging food for the shopper, and assisting the shopper with loading the food into a vehicle.

(3) The following incentive items are prohibited for authorized vendors to provide to WIC shoppers:

(a) Services which result in a conflict of interest or the appearance of such conflict for the authorized vendor, such as assistance with applying for WIC benefits;

(b) Lottery tickets provided to WIC shoppers at no charge or below face value;

(c) Cash gifts in any form, in any amount and for any reason;

(d) Anything made available in a public area as a complimentary gift which may be consumed or taken without charge;

(e) An allowable incentive item provided more than once per WIC shopper per visit, regardless of the number of shoppers or food instruments involved, unless the incentive items had been obtained by the vendor at no cost or the total value of the multiple incentive items provided during the shopping visit would not exceed the less than $2 nominal value limit;

(f) Food, merchandise, or services of greater than the nominal value provided to the WIC shopper;

(g) Food or merchandise sold to WIC shoppers, but not other shoppers, below fair market value;

(h) Any kind of incentive item which incurs a liability for the WIC Program; and

(i) Any kind of incentive item which violates federal, state, or local law or regulations.

(4) For-profit goods or services offered by the authorized vendor to WIC shoppers at fair market value based on comparable for-profit goods or services of other businesses are not incentive items subject to approval or prohibition, except that such goods or services must not constitute a conflict of interest or result in a liability for the WIC Program.

Stat. Auth: ORS 413.500

Stat Implemented: ORS 413.500

Hist.: PH 11-2013, f. 11-6-13, cert. ef. 12-1-13

333-054-0035

Farmer Agreements

(1) A farmer application/agreement must be signed by a representative who has legal authority to obligate the farmer.

(2) The farmer application/agreement must include a requirement that the farmer comply with OAR 333-054-0000 through 333-054-0070, as applicable to farmers.

(3) The farmer application/agreement will be valid for no more than three years.

(4) Neither the Authority nor the farmer is obligated to renew the agreement.

(5) An authorized farmer must comply with requirements contained in 7 CFR 246, OAR 333-054-0000 through 333-054-0070, and the terms and conditions of the farmer application/agreement.

Stat. Auth.: ORS 413.500

Stats. Implemented: ORS 413.500

Hist.: PH 5-2009, f. & cert. ef. 6-1-09; PH 9-2011, f. & cert. ef. 9-30-11

333-054-0040

Vendor and Farmer Monitoring

(1) The Authority shall, at its sole discretion, monitor vendors and farmers for compliance with applicable laws and rules.

(2) The Authority or its authorized representative must conduct compliance buys or inventory audits to collect evidence of improper vendor practices.

(3) The Authority or its authorized representative shall conduct routine monitorings and survey current WIC authorized food shelf prices of selected vendors.

(4) The Authority or its authorized representative shall conduct covert compliance buys and routine monitorings of authorized farmers for compliance with the Authority rules and regulations.

(5) The Authority or its authorized representative may conduct educational buys at selected authorized vendors.

(6) The Authority or its authorized representative may conduct an inventory count of authorized WIC foods at select vendors. The inventory count may include any WIC authorized foods physically located within the store at the time of the visit as well as the foods’ current shelf prices.

Stat. Auth.: ORS 413.500

Stats. Implemented: ORS 413.500

Hist.: HD 7-1993, f. & cert. ef. 6-11-93; OHD 17-2001, f. 8-2-01, cert. ef. 8-15-01; OHD 22-2002, f. & cert. ef. 12-24-02; PH 19-2003(Temp), f. & cert. ef. 11-14-03 thru 5-12-04; PH 22-2003, f. 12-31-03, cert. ef. 1-5-04; PH 16-2005, f. & cert. ef. 10-28-05; PH 30-2006, f. & cert. ef. 12-27-06; PH 5-2009, f. & cert. ef. 6-1-09; PH 9-2011, f. & cert. ef. 9-30-11; PH 11-2013, f. 11-6-13, cert. ef. 12-1-13

333-054-0050

Vendor Violation Notifications and Sanctions

(1) The Authority must notify a vendor in writing when an investigation reveals an initial incidence of a violation for which a pattern of incidences must be established in order to impose a sanction, before another such incidence is documented, unless the Authority determines, in its discretion, on a case-by-case basis, that notifying the vendor would compromise an investigation.

(2) Prior to imposing a sanction for a pattern of violative incidences, the Authority must either provide such notice to the vendor, or document in the vendor file the reason(s) for determining that such a notice would compromise an investigation.

(3) If notification is provided, the Authority may continue its investigation after the notice of violation is received by the vendor, or presumed to be received by the vendor consistent with the Authority’s procedures for providing such notice.

(4) All incidences of a violation occurring during the first compliance buy visit must constitute only one incidence of that violation for the purpose of establishing a pattern of incidences.

(5) A single violative incidence may only be used to establish the violations as written in OAR 333-054-0050(4)(d) and 333-054-0050(4)(e).

(6) Vendors shall receive a written “Notice of Non-compliance” for a single instance of:

(a) Failing to comply with the vendor’s current vendor agreement;

(b) Failing to complete and return the Shelf Price Survey (SPS) by the deadline set by the Authority;

(c) Failing to provide the authorized shopper with a receipt for foods purchased with a food instrument;

(d) Failing to ensure that within 60 days of a name change the outside sign bears the same name as that listed on the vendor agreement;

(e) Influencing an authorized shopper’s selection of authorized foods;

(f) Failing to display prices;

(g) Requesting or requiring any identification or information from the authorized shopper other than the WIC Program identification card;

(h) Failing to respond to a request issued by the Authority;

(i) Failing to accept training when required by the Authority;

(j) Using the “WIC” acronym or logos without prior authorization by the Authority;

(k) Failing to maintain or provide, to the Authority upon request, invoices or receipts to show source(s) of formula purchase;

(l) Retaining WIC identification or any information that identifies a shopper as a WIC participant or disclosing information regarding a client of the WIC Program to any person other than the Authority, its representatives or a federal official;

(m) Failing to comply with the terms in a final order issued by the Authority;

(n) Failing to comply with an investigation by federal or state officials;

(o) Refusing the Authority or a federal official access to food instruments negotiated on the day of review;

(p) Failing to provide, within two business days of the Authority’s request, purchasing/receiving records to substantiate the volume and prices charged to the Authority;

(q) Failing to stock appropriate quantities of authorized foods and infant formula;

(r) Violating the nondiscrimination clause listed in the vendor agreement;

(s) Failing to maintain or provide, to the Authority upon request, documentation for each incentive item;

(t) Failing to have at least one register that accepts WIC open during all of the vendor’s operating hours; or

(u) Failing to display signs at registers to indicate where WIC is accepted, if the vendor doesn’t accept WIC in all lanes.

(7) The Authority shall issue the following civil penalties to vendors for program violations committed within a single contract period:

(a) The Authority shall issue a civil penalty of $100 to vendors for the first instance of seeking restitution from an authorized shopper or participant for a WIC transaction not reimbursed or partially reimbursed by the Authority, or for which the Authority has requested payment from the vendor.

(b) The Authority shall issue a civil penalty of $100 to vendors for second instances of the following violations:

(A) Failing to display prices for WIC-authorized items;

(B) Failing to stock appropriate quantities of authorized foods and infant formula;

(C) Requesting or requiring any identification or information from the authorized shopper other than the WIC Program identification card;

(D) Requiring a cash purchase in addition to the WIC transaction;

(E) Requiring authorized shoppers to pay for authorized foods during a WIC transaction other than with a food instrument. It is permissible for a vendor to request payment over the dollar amount listed on a CVB if the cost of the authorized purchase exceeds the CVB amount.

(F) Using the “WIC” acronym or logos without prior authorization by the Authority;

(G) Failing to attend training when required by the Authority;

(H) Failing to maintain or provide, to the Authority upon request, documentation for each incentive item;

(I) Failing to have at least one register that accepts WIC open during all of the vendor’s operating hours;

(J) Failing to display signs at registers to indicate where WIC is accepted, if the vendor doesn’t accept WIC in all lanes; or

(K) Failing to provide the authorized shopper with a receipt for foods purchased with a food instrument.

(c) The Authority shall issue a civil penalty of $200 to vendors for a second instance of seeking restitution from an authorized shopper or participant for a WIC transaction not reimbursed or partially reimbursed by the Authority, or for which the Authority has requested payment from the vendor.

(d) The Authority shall issue a civil penalty of $200 to vendors for third instances of the following violations:

(A) Failing to display prices for WIC-authorized items;

(B) Using the “WIC” acronym or logos without prior authorization by the Authority;

(C) Requesting or requiring any identification or information from the authorized shopper other than the WIC Program identification card;

(D) Requiring a cash purchase in addition to the WIC transaction;

(E) Requiring authorized shoppers to pay for authorized foods during a WIC transaction other than with a food instrument. It is permissible for a vendor to request payment over the dollar amount listed on a CVB if the cost of the authorized purchase exceeds the CVB amount.

(F) Failing to have at least one register that accepts WIC open during all of the vendor’s operating hours;

(G) Failing to display signs at registers to indicate where WIC is accepted, if the vendor doesn’t accept WIC in all lanes; or

(H) Failing to provide the authorized shopper with a receipt for foods purchased with a food instrument.

(e) The Authority shall issue a civil penalty of $400 to vendors for the fourth offense of the following violations:

(A) Failing to display prices for WIC-authorized items;

(B) Failing to provide the authorized shopper with a receipt for foods purchased with a food instrument;

(C) Failing to have at least one register that accepts WIC open during all of the vendor’s operating hours; or

(D) Failing to display signs at registers to indicate where WIC is accepted, if the vendor doesn’t accept WIC in all lanes.

(f) The Authority shall issue a civil penalty of $800 to vendors for the fifth offense of the following violations:

(A) Failing to display prices for WIC-authorized items;

(B) Failing to provide the authorized shopper with a receipt for foods purchased with a food instrument;

(C) Failing to have at least one register that accepts WIC open during all of the vendor’s operating hours; or

(D) Failing to display signs at registers to indicate where WIC is accepted, if the vendor doesn’t accept WIC in all lanes.

(g) The Authority shall issue a civil penalty of $1600 to vendors for the sixth offense of the following violations:

(A) Failing to display prices for WIC-authorized items;

(B) Failing to provide the authorized shopper with a receipt for foods purchased with a food instrument;

(C) Failing to have at least one register that accepts WIC open during all of the vendor’s operating hours; or

(D) Failing to display signs at registers to indicate where WIC is accepted, if the vendor doesn’t accept WIC in all lanes.

(8) Sanctions:

(a) The Authority shall deny a vendor’s application for authorization upon renewal and require a six-month waiting period before the vendor may reapply if a vendor fails for a third instance to attend training when required by the Authority.

(b) For the following violations, the Authority shall disqualify a vendor for one year:

(A) A pattern of providing unauthorized food items in exchange for food instruments, including charging for authorized food provided in excess of those listed on the food instrument;

(B) A pattern of failing to stock appropriate quantities of authorized foods and infant formula;

(C) A pattern of providing change when redeeming a food instrument;

(D) A pattern of allowing a refund or any other item of value in exchange for authorized foods or providing exchanges for authorized food items obtained with food instruments, except for exchanges of an identical authorized food item when the original authorized food item is defective, spoiled, or has exceeded its “sell by,” “best if used by,” or other date limiting the sale or use of the food item. An identical authorized food item means the exact brand and size as the original authorized food item obtained and returned by the authorized shopper;

(E) Providing WIC shoppers with incentive items or other merchandise or services not approved by the Authority;

(F) A pattern of failing to maintain or provide, to the Authority upon request, documentation for each incentive item;

(G) Failure to pay a civil penalty assessed by the Authority within the designated timeframe set forth in the notice of civil penalty;

(H) A pattern of failing to comply with the vendor’s current vendor agreement; or

(I) A pattern of selling expired authorized foods or formula to authorized shoppers.

(c) For the following violations, the Authority shall disqualify the vendor for three years:

(A) One incident of the sale of alcohol, an alcoholic beverage, or a tobacco product in exchange for a food instrument;

(B) Failing an Authority inventory audit;

(C) A pattern of claiming reimbursement for the sale of an amount of a specific authorized food item, which exceeds the store’s documented inventory of that authorized food item for a specific period of time;

(D) A pattern of vendor overcharges;

(E) A pattern of receiving, transacting or redeeming food instruments outside of authorized channels or locations. This includes, but is not limited to use of an unauthorized vendor, use of an unauthorized person, or redemption of food instruments outside of an authorized store location;

(F) A pattern of seeking restitution from an authorized shopper or participant for a WIC transaction not reimbursed or partially reimbursed by the Authority, or for which the Authority has requested payment from the vendor;

(G) A pattern of charging for foods not received by the authorized shopper; or

(H) A pattern of providing credit or non-food items in exchange for food instruments, other than those items listed in OAR 333-054-0050(4)(d) and 333-054-0050(4)(e).

(d) For the following violations, the Authority shall disqualify the vendor for six years:

(A) One incident of buying or selling a food instrument for cash (trafficking); or

(B) One incident of selling a firearm, ammunition, explosive, or controlled substance, as defined in 21 U.S.C. ¦ 802, in exchange for a food instrument.

(e) The Authority shall permanently disqualify a vendor convicted of trafficking in food instruments or selling firearms, ammunition, explosives, or controlled substances as defined in 21 U.S.C. ¦ 802 in exchange for a food instrument.

[Publications: Publications referenced are available from the agency.]

Stat. Auth.: ORS 413.500

Stats. Implemented: ORS 413.500

Hist.: HD 7-1993, f. & cert. ef. 6-11-93; OHD 17-2001, f. 8-2-01, cert. ef. 8-15-01; OHD 22-2002, f. & cert. ef. 12-24-02; PH 19-2003(Temp), f. & cert. ef. 11-14-03 thru 5-12-04; PH 22-2003, f. 12-31-03, cert. ef. 1-5-04; PH 7-2005(Temp), f. & cert. ef. 5-2-05 thru 10-28-05; PH 16-2005, f. & cert. ef. 10-28-05; PH 30-2006, f. & cert. ef. 12-27-06; PH 5-2009, f. & cert. ef. 6-1-09; PH 9-2011, f. & cert. ef. 9-30-11; PH 11-2013, f. 11-6-13, cert. ef. 12-1-13

333-054-0055

Farmer Violations and Sanctions

(1) A farmer is in violation if a farmer fails to comply with WIC program rules and the terms and conditions of the farmer application/agreement or fails to respond to requests, implement corrective action, or comply with the terms in final orders as directed by the Authority.

(2) Farmer Sanctions:

(a) The Authority may issue a written notification of non-compliance to an authorized farmer for an initial incident of:

(A) Accepting CVBs for ineligible foods;

(B) Failing to prominently display the official sign provided by the Authority, each market day when at authorized farmers’ markets or authorized farm stands;

(C) Failing to provide WIC shoppers with the full amount of product for the value of each CVB;

(D) Failing to ensure that WIC shoppers receive equitable treatment, including the availability of produce that is of the same quality and no greater price than sold to other shoppers;

(E) Failing to reimburse the Authority for CVBs that are improperly transacted;

(F) Charging sales tax on CVB purchases;

(G) Seeking restitution from WIC shoppers or participants for CVBs not paid by the Authority;

(H) Giving cash back for purchases less than the value of the CVB (providing change);

(I) Accepting CVBs from an unauthorized farmer;

(J) Failing to comply with WIC program rules and the terms and conditions of the farmer application/agreement;

(K) Failing to respond to requests, implement corrective action, or comply with the terms in final orders as directed by the Authority;

(L) Using CVBs for any purpose other than to deposit or cash them at the authorized farmer’s financial institution; or

(M) Failing to cooperate with staff from the Authority, staff authorized to act on the Authority’s behalf or the Oregon Department of Agriculture in monitoring for compliance with program requirements and failing to provide information that the Authority or the Oregon Department of Agriculture may require.

(b) The Authority may disqualify a farmer for six months for an initial incident of:

(A) Providing credit in exchange for CVBs; or

(B) Charging WIC shoppers higher prices than other shoppers.

(c) The Authority may disqualify a farmer for six months, for second or subsequent incidents of:

(A) Accepting CVBs for ineligible foods;

(B) Failing to prominently display the official sign provided by the Authority, each market day when at authorized farmers’ markets or authorized farm stands;

(C) Failing to provide WIC shoppers with the full amount of product for the value of each CVB;

(D) Failing to ensure that WIC shoppers receive equitable treatment, including the availability of produce that is of the same quality and no greater price than sold to other shoppers;

(E) Charging sales tax on CVB purchases;

(F) Seeking restitution from WIC shoppers or participants for CVBs not paid by the Authority;

(G) Using CVBs for any purpose other than deposit or cash at the authorized farmer’s financial institution;

(H) Giving cash back for purchases less than the value of the CVB (providing change);

(I) Accepting CVBs from an unauthorized farmer; or

(J) Failing to respond to requests, implement corrective action, or comply with the terms in final orders as directed by the Authority.

(d) The Authority may disqualify a farmer for one year following second or subsequent incidents of:

(A) Providing credit in exchange for CVBs;

(B) Charging WIC shoppers higher prices than other shoppers;

(C) Failing to reimburse the Authority for CVBs that are improperly transacted; or

(D) Failing to cooperate with staff from the Authority or the Oregon Department of Agriculture in monitoring for compliance with program requirements and failing to provide information required to be submitted by the Authority or the Oregon Department of Agriculture.

(e) The Authority may immediately disqualify a farmer for three years for an incident of:

(A) Trafficking in CVBs (exchanging checks for cash, controlled substances, tobacco products, firearms, or alcohol) in any amount; or

(B) A USDA substantiated violation of laws regarding non-discrimination, and applicable USDA instructions.

Stat. Auth.: ORS 413.500

Stats. Implemented: ORS 413.500

Hist.: PH 5-2009, f. & cert. ef. 6-1-09; PH 9-2011, f. & cert. ef. 9-30-11; PH 11-2013, f. 11-6-13, cert. ef. 12-1-13

333-054-0060

Vendor Disqualifications

(1) A vendor may not apply for authorization during a period of disqualification from the WIC Program.

(2) The Authority shall not accept a vendor’s voluntary withdrawal from the WIC Program as an alternative to disqualification. In addition, the Authority may not use non-renewal as an alternative to disqualification.

(3) The Authority shall disqualify a vendor that does not pay, partially pays or fails to timely pay, a CMP assessed in lieu of disqualification, for the length of the disqualification corresponding to the violation for which the CMP was assessed.

(4) In order to participate in the WIC program after a vendor is disqualified, it must apply for authorization after the disqualification period has passed.

(5) The Authority shall disqualify a vendor for a period corresponding to the most serious sanction during the course of a single investigation when the Authority determines the vendor has committed multiple violations. The Authority shall include all violations in the notice of administrative action. If a sanction for a specific violation is not upheld after the hearing or appeal, the Authority may impose a sanction for any remaining violations.

(6) If the basis for disqualification of a vendor is for violation of OAR 333-054-0050(4)(d), the effective date of the disqualification is the date the vendor received notice, either actual or constructive, of the disqualification.

(7) The Authority may disqualify a vendor that has been disqualified or assessed a CMP in lieu of disqualification by another WIC state agency for a mandatory sanction.

(a) The length of the disqualification shall be for the same length of time as the disqualification by the other WIC state agency or, in the case of a CMP in lieu of disqualification assessed by the other WIC state agency, for the same length of time for which the vendor would otherwise have been disqualified. The disqualification may begin at a later date than the sanction imposed by the other WIC state agency.

(b) If the Authority determines that disqualification of a vendor would result in inadequate participant access, the Authority shall impose a CMP in lieu of disqualification.

(8) The Authority shall disqualify a vendor who has been disqualified from the SNAP. The disqualification shall be for the same length of time as the SNAP disqualification, although it may begin at a later date than the SNAP disqualification. Such disqualification by the WIC program shall not be subject to administrative or judicial review under the WIC program.

(a) The Authority may disqualify a vendor who has been assessed a CMP in lieu of disqualification in the SNAP, as provided in 7 CFR ¦ 278.6. The length of such disqualification shall correspond to the period for which the vendor would otherwise have been disqualified in the SNAP. The Authority shall determine if the disqualification of a vendor would result in inadequate participant access prior to disqualifying a vendor for SNAP disqualification pursuant to section (8) of this rule or for any of the violations listed in this rule. If the Authority determines that disqualification of the vendor would result in inadequate participant access, the Authority shall not disqualify or impose a CMP in lieu of disqualification. The Authority shall include participant access documentation in vendor files.

(b) The Authority shall provide the appropriate FNS office with a copy of the notice of adverse action and information on vendors it has disqualified. This information shall include the vendor’s name, address, identification number, the type of violation(s), length of the disqualification, or the length of the disqualification corresponding to the violation for which a SNAP CMP was assessed.

(9) Disqualification from the WIC Program may result in disqualification as a retailer in the SNAP. Such disqualification may not be subject to administrative or judicial review under the SNAP.

(10) Prior to disqualifying a vendor, the Authority shall determine if disqualification of the vendor would result in inadequate participant access.

(a) If the Authority determines that disqualification of the vendor would result in inadequate participant access, the Authority shall not disqualify the vendor and shall impose a CMP in lieu of disqualification.

(b) The Authority shall include documentation of its participant access determination and any supporting documentation in the vendor’s file.

(c) The Authority shall not impose a CMP in lieu of disqualification for third or subsequent sanctions, even if the disqualification results in inadequate participant access.

(d) The Authority shall not impose a CMP in lieu of disqualification for trafficking or an illegal sales conviction, even if the disqualification results in inadequate participant access.

(11) Pursuant to 7 CFR 246.12 (l)(1), the Authority shall use the following formula to calculate a CMP imposed in lieu of disqualification:

(a) Determine the vendor’s average monthly redemptions for at least the six-month period ending with the month immediately preceding the month during which the notice of administrative action is dated;

(b) Multiply the average monthly redemptions figure by 10 percent (.10); and

(c) Multiply the product from subsection (11)(b) of this rule by the number of months for which the store would have been disqualified. This is the amount of the CMP, provided that the CMP shall not exceed $11,000 for each violation. For a violation that warrants permanent disqualification, the amount of the CMP shall be $11,000. The Authority shall impose a CMP for each violation when during the course of a single investigation the Authority determines a vendor has committed multiple violations. The total amount of CMPs imposed for violations cited as part of a single investigation shall not exceed $44,000.

(12) The Authority shall use the formula in subsections (11)(a) through (c) of this rule to calculate a CMP in lieu of disqualification for any violation under OAR 333-054-0050(4)(b). The Authority has the discretion to reduce the amount of this CMP in quarterly increments, after reviewing the following criteria:

(a) Whether the vendor had other WIC violations or complaints within the 12 months immediately preceding the month the notice of administrative action is dated;

(b) The degree of severity of the violations and complaints;

(c) If the vendor being sanctioned is part of a multi-store chain, whether there is a pattern within the corporation of violations and the seriousness of those violations; and

(d) The degree of cooperation shown by the vendor, demonstrated by the vendor’s willingness to schedule staff training and to make changes in store operations based on the Authority recommendations.

(13) The Authority shall, where appropriate, refer vendors who abuse the WIC Program to appropriate federal, state or local authorities for prosecution under applicable statutes.

(14) A vendor who commits fraud or abuse of the program is subject to prosecution under applicable federal, state or local laws. A vendor who has embezzled, willfully misapplied, stolen or fraudulently obtained program funds, assets, or property shall be subject to a fine of not more than $25,000 or imprisonment for not more than five years or both, if the value of the funds is $100 or more. If the value is less than $100, the penalties are a fine of not more than $1,000 or imprisonment for not more than one year or both.

(15) A vendor may be subject to actions in addition to the sanctions in this rule, such as claims by the Authority of reimbursement for improperly redeemed food instruments and penalties outlined in 7 CFR ¦ 246.12(1)(2)(i).

(16) The Authority shall use the following criteria to determine inadequate participant access:

(a) The availability of other authorized vendors within a 15-mile radius; and

(b) Geographic barriers.

(17) Any time the Authority uses criteria in section (16) of this rule, the Authority shall include participant access documentation in the vendor file.

(18) The Authority shall not reimburse for food instruments submitted by a vendor for payment during a period of disqualification.

(19) A vendor is not entitled to receive any compensation for revenues lost as a result of a disqualification.

[Publications: Publications referenced are available from the agency.]

Stat. Auth.: ORS 413.500

Stats. Implemented: ORS 413.500

Hist.: HD 7-1993, f. & cert. ef. 6-11-93; OHD 17-2001, f. 8-2-01, cert. ef. 8-15-01; OHD 22-2002, f. & cert. ef. 12-24-02; PH 19-2003(Temp), f. & cert. ef. 11-14-03 thru 5-12-04; PH 22-2003, f. 12-31-03, cert. ef. 1-5-04; PH 7-2005(Temp), f. & cert. ef. 5-2-05 thru 10-28-05; PH 16-2005, f. & cert. ef. 10-28-05; PH 30-2006, f. & cert. ef. 12-27-06; PH 5-2009, f. & cert. ef. 6-1-09; PH 9-2011, f. & cert. ef. 9-30-11; PH 11-2013, f. 11-6-13, cert. ef. 12-1-13

333-054-0065

Farmer Disqualifications

(1) Farmers who do not comply with WIC program requirements are subject to sanctions, including civil penalties, in addition to, or in lieu of, disqualification.

(2) Prior to disqualifying a farmer, the Authority may determine if disqualification of the farmer would result in inadequate participant access. If the Authority determines that disqualification of the farmer would result in inadequate participant access, the Authority may impose a CMP in lieu of disqualification in the amount of 5 percent of the farmer’s CVBs sales over the last twelve months or $250, whichever is greater.

(3) The Authority must give written notice to a farmer of an action proposed to be taken against a farmer, not less than 15 days before the effective date of the action. The notice must state what action is being taken, the effective date of the action, and the procedure for requesting a hearing.

(4) A farmer that has been disqualified from the WIC program may reapply at the end of the disqualification period.

(5) The Authority may accept a farmer’s voluntary withdrawal from the program as an alternative to disqualification. If a farmer chooses to withdraw in lieu of disqualification, the farmer may not apply for participation until the following year.

(6) The Authority will not reimburse farmers who have been disqualified or have withdrawn in lieu of disqualification.

(7) Civil penalties must be paid to the Authority within the time period specified in the Notice.

(8) A farmer who commits fraud or abuse of the WIC program is subject to prosecution under applicable federal, state or local laws.

Stat. Auth.: ORS 413.500

Stats. Implemented: ORS 413.500

Hist.: PH 5-2009, f. & cert. ef. 6-1-09; PH 11-2013, f. 11-6-13, cert. ef. 12-1-13

333-054-0070

Administrative Review

(1) The Authority shall provide a full administrative review in accordance with the provisions of ORS chapter 183 for the following, as applicable:

(a) Denial of authorization based on a determination that the vendor or farmer is attempting to circumvent a sanction;

(b) Termination of an agreement for cause;

(c) Disqualification;

(d) Imposition of a civil penalty or a CMP in lieu of disqualification; and

(e) Denial of authorization based on the vendor selection criteria for competitive price or minimum variety and quantity of authorized WIC foods.

(2) The Authority may provide a vendor with an abbreviated or full administrative review in accordance with the provisions of ORS chapter 183 for the following, as applicable:

(a) Denial of authorization based on selection criteria for business integrity or for a current FSP disqualification or CMP penalty for hardship;

(b) Denial of authorization based on an Authority selection criteria for previous history of WIC sanctions or SNAP withdrawal of authorization or disqualification;

(c) Denial of authorization based on the Authority’s limiting criteria;

(d) Termination of an agreement because of a change in ownership or location or cessation of operations;

(e) Disqualification based on a trafficking conviction;

(f) Disqualification based on the imposition of a SNAP CMP for hardship;

(g) Disqualification or CMP based on a USDA mandatory sanction from another state WIC agency; and

(h) Application of criteria used to determine whether a store is an A50.

(3) The vendor or farmer shall not be entitled to an administrative review for the following actions, as applicable:

(a) The validity or appropriateness of the Authority’s limiting or selection criteria;

(b) The validity or appropriateness of the Authority’s participant access criteria and the Authority’s participant access determinations;

(c) The Authority’s determination regarding whether an effective policy and program in effect to prevent trafficking regardless of the vendor or farmer’s awareness, approval, or involvement in the violation activity;

(d) Denial of authorization if the Authority vendor authorization is subject to the procurement procedures applicable to the Authority;

(e) The expiration of the agreement;

(f) Disputes regarding food instrument payments and claims;

(g) Disqualification of a vendor as a result of disqualification from the SNAP;

(h) The Authority’s determination whether to notify a vendor in writing when an investigation reveals an initial violation for which a pattern of violations must be established in order to impose a sanction;

(i) The Authority’s determination to include or exclude an infant formula manufacturer, wholesaler, distributor, or retailer from the list required;

(j) The validity or appropriateness of the Authority’s criteria used to determine whether or not a vendor is an A50 store; and

(k) The validity or appropriateness of the Authority’s prohibition of incentive items and the Authority’s denial of an A50 vendor’s request to provide an incentive item to shoppers.

(4) A request for a hearing must be in writing and must be received within 30 days from the date of the notice describing the proposed action.

(5) The Authority may, at its discretion, permit the vendor or farmer to continue participating in the program pending the outcome of an administrative hearing. The vendor or farmer may be required to repay funds for FIs redeemed during the pendency of the hearing, depending on the hearing outcome.

(6) If an agreement expires during the appeal period, the Authority will accept application for renewal and delay determination until all appeals have been exhausted.

Stat. Auth.: ORS 413.500

Stats. Implemented: ORS 413.500

Hist.: HD 7-1993, f. & cert. ef. 6-11-93; OHD 17-2001, f. 8-2-01, cert. ef. 8-15-01; OHD 22-2002, f. & cert. ef. 12-24-02; PH 19-2003(Temp), f. & cert. ef. 11-14-03 thru 5-12-04; PH 22-2003, f. 12-31-03, cert. ef. 1-5-04; PH 16-2005, f. & cert. ef. 10-28-05; PH 30-2006, f. & cert. ef. 12-27-06; PH 5-2009, f. & cert. ef. 6-1-09; PH 9-2011, f. & cert. ef. 9-30-11; PH 11-2013, f. 11-6-13, cert. ef. 12-1-13

Notes
1.) This online version of the OREGON BULLETIN is provided for convenience of reference and enhanced access. The official, record copy of this publication is contained in the original Administrative Orders and Rulemaking Notices filed with the Secretary of State, Archives Division. Discrepancies, if any, are satisfied in favor of the original versions. Use the OAR Revision Cumulative Index found in the Oregon Bulletin to access a numerical list of rulemaking actions after November 15, 2012.

2.) Copyright 2013 Oregon Secretary of State: Terms and Conditions of Use

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