New Hampshire Code of Administrative Rules
He - Department of Health and Human Services
Subtitle He-P - Former Division of Public Health Services
Chapter He-P 3200 - SPECIAL SUPPLEMENTAL NUTRITION PROGRAM FOR WOMEN, INFANTS AND CHILDREN (WIC)
Part He-P 3207 - SANCTIONS
Section He-P 3207.03 - Vendors

Universal Citation: NH Admin Rules He-P 3207.03

Current through Register No. 40, October 3, 2024

(a) Vendor investigations shall include the following:

(1) In accordance with 7 CFR 246.12(l) (1) (xii) , if the department is investigating an allegation that a vendor has committed at least one violation as described in (h) below, and if during that investigation the department verifies that the vendor has committed a less serious violation or violations set forth in (b) -(j) below, the department shall:
a. Not provide the vendor with warning or impose sanction points for the less serious violation or violations listed in (b) -(g) below prior to the completion of the single investigation;

b. Include in the notice of proposed disqualification all violations found in the course of the single investigation and the vendor's opportunity to request an administrative hearing; and

c. Include in the notice of proposed disqualification that the vendor shall be disqualified for the most serious federally mandated violation if at the conclusion of the single investigation the department determines that the vendor has committed a violation set forth in (h) below;

(2) Violations alleged and sanction points issued by the department shall be subject to appeal by the vendor in accordance with He-P 3208, He-C 200 and 7 CFR 246.18;

(3) The department shall provide written notice of warning of initial violation for violations requiring a pattern of occurrences in order to impose a sanction prior to documenting another violation unless the department determines that notifying the vendor will compromise an investigation as described in (a) (1) above;

(4) Except for those violations committed in accordance with (a) (1) above, the department shall:
a. Issue sanction points in accordance with violations listed in (b) -(j) below; and

b. Notify the vendor in writing of the imposition of sanctions or the assignment of sanction points and the specific violation(s) for which they were assigned;

(5) Except for violations as listed in (h) -(i) below the department shall apply the period of vendor disqualification in accordance with violation category description in (b) -(g) below to apply sanction points and retention of these points;

(6) When a vendor has been assigned sanction points, the following shall apply:
a. When a vendor has accumulated 6 or more sanction points, the department shall disqualify that vendor from participation as a WIC vendor;

b. Sanction points shall be assigned for each Category II and III violation;

c. Sanction points shall be cumulative regardless of the category;

d. The department shall disqualify a vendor from participation as a WIC vendor for a period of one calendar month for each sanction point as stated in (a) (6) a. above; and

e. The sanction points shall be retained on the vendor's record in accordance with (b) -(j) below;

(7) Vendors may appeal or request an administrative hearing in accordance with He-P 3208, He-C 200, and 7 CFR 246.18;

(8) In accordance with 7 CFR 246.12(l) (1) (viii), the department shall not accept voluntary termination of the vendor agreement or use non-renewal of the vendor agreement in lieu of disqualification, but shall enter the disqualification on the record;

(9) Disqualification shall include terminating any current vendor agreement;

(10) Vendors who are disqualified for any reason shall be required to reapply in writing;

(11) A previously disqualified vendor who is reauthorized within one year of the end of the period of disqualification shall be assigned 3 sanction points to be retained for a period of 12 months following the date of reauthorization;

(12) Prior to imposing a disqualification, the department shall determine whether the disqualification would result in inadequate participant access;

(13) With the exception of (a) (14) below, when the department determines, in accordance with (a) (12) above, that a disqualification of a vendor would result in inadequate participant access, the department shall impose a civil money penalty in lieu of disqualification as allowed by 7 CFR 246.12(l) (l) (vii) ;

(14) A civil money penalty shall not be imposed by the department in lieu of disqualification when the vendor has violated (h) (1) below, or violated (h) (2) -(h) (4) for a pattern of 3 incidences or more within a 12 month period;

(15) In accordance with 7 CFR 246.12(l) (1) (x) , the amount of a civil money penalty shall equal 10% of the average monthly WIC redemptions for the most recent 6 month period multiplied by the number of months for which the vendor would have been disqualified;

(16) The civil money penalty issued in accordance with (a) (15) above shall not exceed the amount specified by the Secretary of Agriculture in 7 CFR 3.91(b) (3) (v) for each violation;

(17) In accordance with 7 CFR 246.12(l) (1) (x) (C) , if multiple violations are revealed by a single investigation, the department shall impose a civil money penalty, not to exceed $ the amount specified by the Secretary of Agriculture in 7 CFR 3.91(b) (3) (v) if disqualification would result in inadequate participant access;

(18) If a vendor does not fully pay a civil money penalty or an unauthorized costs claim within 30 days of the notice, the vendor shall be disqualified:
a. For the length of the disqualification corresponding to the violation for which the civil money penalty was assessed; or

b. For a period corresponding to the most serious violation in cases where a mandatory sanction included the imposition of multiple civil money penalties as a result of a single investigation;

(19) When a vendor, who had previously been assessed a sanction based on a violation as listed in (h) (2) -(h) (4) below, receives another sanction based on having committed the same or other violation as listed in the same section, the department shall double the sanction for the second violation;

(20) Civil money penalties shall only be doubled up to the amount specified by the Secretary of Agriculture in 7 CFR 3.91(b) (3) (v) as limited by (a) (15) through (a) (18) above;

(21) When a vendor, who had previously been assessed 2 sanctions based on violations as listed in (h) (2) -(h) (4) below, receives another sanction based on having committed the same or other violations as listed in (h) (2) -(h) (4) below, the department shall double the sanction for the third violation;

(22) In accordance with 7 CFR 246.12(l) (1) (vi) , the department shall not impose a civil money penalty in lieu of disqualification for committing a third violation even if inadequate participant access would result;

(23) The department shall treat a fourth or subsequent violation in the same manner as the third except that the sanction shall be doubled; and

(24) Money received by the department as a result of civil money penalties assessed against a vendor shall be considered program income in accordance with 7 CFR 246.15(b) .

(b) Category I violations shall consist of the following:

(1) Failure to submit inventory and price information requested by the department within 30 days;

(2) Requiring participants to purchase a specific brand of an approved food when more than one approved brand is available;

(3) Failure to provide promotional specials or accept manufacturer or store coupons for WIC purchases, except that cash-only promotions may be denied to participants if denied to other non-cash paying customers;

(4) Failure to make staff available for training in program rules and procedures;

(5) Failure to clearly indicate the retail price of all WIC-approved items, either individually on each item or at the shelf or point of display;

(6) Providing WIC-approved food during a WIC transaction that is beyond the expiration or last sell date imprinted on the product packaging by the product's manufacturer;

(7) Failure to train all employees who handle WIC transactions and to ensure their knowledge regarding WIC program procedures set forth in training materials and manuals provided by the department;

(8) Failure to follow proper redemption procedures;

(9) Asking for a eWIC cardholder identification to complete an eWIC transaction;

(10) Failure to provide the WIC cardholder with a receipt at the end of the transaction containing required receipt elements pursuant to section 5.5 of the United States Department of Agriculture, Food and Nutrition Service "Operating Rules Women, Infants and Children (WIC) Electronic Benefits Transfer (EBT) " (September 2014) https://fns-prod.azureedge.net/sites/default/files/wic/WIC-EBT-Operating-Rules-September-2014.pdf, available as noted in Appendix A; and

(11) Failure to provide the WIC cardholders with a balance receipt showing the current available benefit balance upon request without requiring a purchase to be made.

(c) Category I violations shall accrue 2 points per violation to be retained for 12 months.

(d) Category II violations shall consist of the following:

(1) Contacting participants in an attempt to have them return to the store to fix a vendor error or to seek reimbursement for food costs not paid by the department;

(2) Accepting the return of items purchased with a WIC food benefit for cash or credit towards other purchases;

(3) Requiring participants to use special checkout lanes;

(4) Substituting a WIC approved UPC or PLU for a non-WIC approved UPC or PLU during an eWIC transaction;

(5) Failure to allow department or local agency representatives to complete on-site monitoring;

(6) Failure to maintain the minimum stock of WIC-approved foods;

(7) Asking for or entering a cardholder's PIN number, unless the cardholder has requested assistance;

(8) Failure to keep all WIC cardholder information confidential;

(9) Failure to ensure the current New Hampshire APL/PLU is uploaded in the store's POS system and is being used for eWIC transactions;

(10) Charging the cardholder a fee either directly, or indirectly, arising out of or associated with operating, maintaining, or processing eWIC card transactions;

(11) Failure to provide infant formula within forty-eight (48) hours of request by a WIC cardholder; and

(12) Scanning a UPC code as a substitute, replacement, or scanning a UPC code that is not affixed to the product, such as a UPC codebook or reference sheet.

(e) Category II violations shall accrue 3 points per violation to be retained for 12 months.

(f) A Category III violation shall consist of a failure to provide access to redeemed eWIC transaction information or store inventory records upon request.

(g) Category III violations shall accrue 12 points per violation and result in a one-year disqualification.

(h) Federally mandated sanctions shall include:

(1) A vendor convicted in court for the crime of trafficking in food benefits or for selling firearms, ammunition, explosives, or controlled substances, as defined in section 102 of the Controlled Substances Act, 21 U.S.C. 802, in exchange for food benefits shall be permanently disqualified from program participation, effective on the date of receipt of the notice of disqualification;

(2) A vendor shall be disqualified from program participation for 6 years for a single incidence of buying or selling food benefits for cash trafficking or a single incidence of selling firearms, ammunition, explosives, or controlled substances as defined in section 102 of the Controlled Substances Act, 21 U.S.C 802, in exchange for food benefits;

(3) A vendor shall be disqualified for 3 years for:
a. A single incidence of the sale of alcohol or alcoholic beverages or tobacco products in exchange for food benefits; or

b. A pattern of 3 or more incidences within a 12-month period of:
1. Claiming reimbursement for the sale of an amount of a specific supplemental food item that exceeds the vendor's documented inventory;

2. Charging the department more for an approved supplemental food than non-WIC customers or charging the department more than the current shelf price permitted under the vendor agreement;

3. Receiving, transacting, or redeeming food benefits outside authorized channels, including the use of an unauthorized vendor or an unauthorized person;

4. Charging the department for supplemental food not received by the participant; or

5. Providing credit or non-food items, other than those listed in (h) (1), (h) (2) and (h) (3) a. above, in exchange for food benefits;

(4) A vendor shall be disqualified for one year for a pattern of 3 or more incidences within a 12 month period of providing unapproved food items in exchange for food benefits, including charging for supplemental food provided in excess of those listed on the food benefit;

(5) In accordance with 7 CFR 276.12(l) (1) (vii) a vendor who has been disqualified from SNAP shall:
a. Be disqualified from WIC program participation for the same length of time as the food stamp program disqualification; and

b. Not appeal the WIC program disqualification to federal administrative or judicial tribunals;

(6) A vendor who has been assessed a SNAP civil money penalty for hardship in lieu of disqualification from SNAP shall be disqualified from WIC program participation, the length of which shall correspond to the period for which the vendor would otherwise have been disqualified in SNAP; and

(7) In accordance with 7 CFR 246.12(l) (2) (ii) B., if the department determines that disqualification of the vendor for (h) (6) above would result in inadequate participant access, the vendor shall not be disqualified and a civil money penalty shall not be imposed.

(i) Failure to meet rules or standards of another New Hampshire state agency or New Hampshire health agency which results in suspension of license shall result in a disqualification period not to exceed the federal limit as cited in 7 CFR 246.12(l) (2) (iii) of one year in length and remain in effect until such rules or standards are met and license reinstated.

(j) A vendor who is disqualified from participation in another program administered by the state shall be disqualified for a period not exceeding one year from program participation for an equal number of months as the other program disqualification.

#4518, eff 10-28-88; EXPIRED 10-28-94

New. #6226, eff 4-24-96; ss by #7489, eff 5-11-01; ss by #7774, eff 10-8-02; ss by #8580, eff 3-11-06; ss by #9556, eff 10-1-09

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