Current through Register Vol. 50, No. 9, September 20, 2024
A. Some adverse actions taken by LA WIC that
affect vendors or vendor applicants may be subject to administrative review, if
appealed.
B. LA WIC shall provide
written notification of the adverse action, the procedures to follow to request
an administrative review (full or abbreviated), if applicable, and the cause(s)
for and the effective date of the action. If the vendor is disqualified due in
whole or in part to federal mandatory vendor sanction violations of
§4509 of this Subpart, such notification
shall include the following statement: "This disqualification from WIC may
result in disqualification as a retailer in SNAP. Such disqualification is not
subject to administrative or judicial review under SNAP."
C. If the vendor or vendor applicant wishes
to appeal the decision, and the adverse action is appealable, the vendor or
vendor applicant shall submit a request for appeal stating the permissible
reason(s) for appeal. The request shall be submitted to LA WIC within 15 days
after the date of the notice of the adverse action.
D. Effective Date of Adverse Actions Against
Vendors. Denials of WIC authorization and permanent disqualifications imposed
under §4509 of this Subpart
are effective on the date of receipt of the notice of adverse action. All other
adverse actions are effective 15 days after the date of the notice of the
adverse action.
E. Adverse Actions
Subject to Full Administrative Review:
1. The
following adverse actions are subject to full administrative review.
a. denial of WIC authorization based on the
application of the vendor selection criteria of failure to stock and maintain
sufficient quantities and varieties of all WIC approved food items in
accordance with LA WIC's minimum stock requirements;
b. denial of WIC authorization based on a
determination that the vendor is attempting to circumvent a sanction;
c. termination of an agreement for cause,
which does not include termination of an agreement because of a change in
ownership or location, or cessation of operations, or expiration of an
agreement;
d. disqualification,;
or
e. imposition of a fine or a
civil money penalty (CMP) in lieu of disqualification.
2. Full Administrative Review Procedures. A
vendor or vendor applicant who files a timely and proper appeal request for
those actions subject to full administrative review shall be provided:
a. adequate advance notice of the time and
place of the administrative review to provide all parties involved sufficient
time to prepare for the review.;
b.
the opportunity to present its case and at least one opportunity to reschedule
the administrative review date upon specific request. LA WIC may set standards
on how many review dates can be scheduled, provided that a minimum of two
review dates is allowed.;
c. the
opportunity to cross examine adverse witnesses. When necessary to protect the
identity of WIC program investigators, such examination may be conducted behind
a protective screen or other device.;
d. the opportunity to be represented by
counsel.;
e. the opportunity to
examine prior to the review the evidence upon which LA WIC's action is
based.;
f. an impartial
decision-maker, whose determination is based solely on whether LA WIC has
correctly applied Federal and State statutes, regulations, policies, and
procedures governing LA WIC, according to the evidence presented at the review.
LA WIC may appoint a reviewing official, such as chief hearing officer or
judicial officer, to review appeal decisions to ensure that they conform to
approved policies and procedures.; and
g. written notification of the review
decision, including the basis for the decision, within 90 days from the date of
receipt of the request for an administrative review from a vendor. This
timeframe is only an administrative requirement for LA WIC and does not provide
a basis for overturning LA WIC's adverse action if a decision is not made
within the specified timeframe.
F. Adverse Actions Subject to Abbreviated
Administrative Review.
1. The following
adverse actions are subject to abbreviated administrative review
a. denial of WIC authorization based on:
i. LA WIC's vendor limiting
criteria;
ii. vendor submitting its
vendor application outside the timeframes during which applications are being
accepted and processed as stated in the vendor guide and policy
manual;
iii. a current sanction
(termination) for a non-federally mandated (State) selection criteria;
or
iv. failure to meet the
following vendor selection criteria:
(a).
business integrity;
(b). current
SNAP authorization; or
(c).
competitive pricing.
b. termination of an agreement because of
change in ownership or location or cessation of operations;
c. disqualification based on the following:
i. a trafficking conviction;
ii. the imposition of a SNAP CMP for
hardship; or
iii. a mandatory
sanction imposed by another WIC state agency.
d. A CMP imposed in lieu of disqualification
based on the following:
i. a mandatory
sanction imposed by another WIC state agency; or
ii. SNAP disqualification.
e. LA WIC'S application of vendor
peer group criteria; or
f. LA WIC's
application of the criteria used to identify vendors that are above-50-percent
(A-50) vendors.
2.
Abbreviated Administrative Review Procedures. A vendor or vendor applicant who
files a timely and proper appeal request for those actions subject to
abbreviated administrative review shall be provided:
a. a decision-maker who is someone other than
the person who rendered the initial decision on the action and whose
determination is based solely on whether LA WIC has correctly applied federal
and state statutes, regulations, policies, and procedures governing LA WIC,
according to the information provided to the vendor, concerning the cause(s)
for the adverse action and the response from the vendor; and
b. written notification of the review
decision, including the basis for the decision within 90 days from the date of
receipt of the request for an administrative review from a vendor. This
timeframe is only an administrative requirement for LA WIC and does not provide
a basis for overturning LA WIC's adverse action if a decision is not made
within the specified timeframe.
G. Actions Not Subject to Administrative
Review. Adverse actions not described in this Subpart are not subject to
administrative review. Adverse actions that are not subject to administrative
review include, but are not limited to, the following:
1. the validity or appropriateness of the
following:
a. LA WIC's vendor limiting
criteria;
b. LA WIC's participant
access criteria and LA WIC's participant access determinations;
c. LA WIC's prohibition of incentive items
and LA WIC's denial of an A-50 vendor's request to provide an incentive item to
customers;
d. vendor selection
criteria for the following:
i. minimum
variety and quantity of WIC approved food items ;
ii. business integrity;
iii. current SNAP disqualifications or CMP
for hardship; or
iv. competitive
price including, but not limited to, vendor peer group criteria and the
criteria used to identify vendors that are A-50 vendors or comparable to A-50
vendors.
2.
LA WIC's determination:
a. to include or
exclude an infant formula supplier (manufacturer, wholesaler, distributor, or
retailer) from the LA WIC infant formula supplier list; or
b. 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.
3. denial of WIC authorization if LA WIC's
vendor authorization is subject to the procurement procedures applicable to LA
WIC;
4. The expiration of a
vendor's agreement;
5. disputes
regarding:
a. payments by LA WIC to vendors
for WIC transactions;
b. vendor
claims for reimbursement; or
c.
claims and/or recoupment made by LA WIC against vendors (other than the
opportunity to justify or correct a vendor overcharge or other
error).
6.
disqualification of a vendor as a result of disqualification from SNAP;
or
7. any other circumstance,
situation, or action not described in this Subpart.
H. A vendor who has been issued a CMP and is
permitted to continue program operations while its appeal is in process must
also continue to abide by all LA WIC vendor rules and regulations.
I. Participation as a vendor in LA WIC is a
privilege. WIC authorization does not constitute a license or property
interest. A vendor cannot claim and is not entitled to money for loss of WIC
sales during the pendency of an appeal of an adverse action. If the vendor is
reinstated following a successful administrative review of an adverse action
taken by LA WIC, the vendor cannot claim and is not entitled to retroactive
payments and/or compensation for revenues lost for the period of time the
vendor was not on the program.
J.
Unless otherwise noted, full and abbreviated administrative review decisions
are the final action of LA WIC. LA WIC reserves the right to file additional
motions for reconsideration as well as motions for re-appeal. LA WIC is under
no obligation to immediately reinstate the vendor during ongoing proceedings.
1. If the administrative review yields a
decision in favor of LA WIC, the vendor may pursue judicial review of the
decision.
2. If the administrative
review yields a decision in favor of the vendor, the vendor will be reinstated
provided all appeal rights have been exhausted and the vendor agreement has not
expired during ongoing proceedings.
AUTHORITY
NOTE: Promulgated in accordance with
R.S.
46:972.
