Current through Register Vol. 39, No. 6, September 16, 2024
(a) Title
7 C.F.R.
246.12(l)(1)(i) through (vi) and
(xii) are incorporated by reference with all
subsequent amendments and editions. In accordance with
7 C.F.R.
246.12(l)(1)(i), the State
agency shall not allow imposition of a civil money penalty in lieu of
disqualification for a vendor permanently disqualified. A pattern, as
referenced in 7 CFR
246.12(l)(1)(iii)(B) through
(F) and
246.12(l)(1)(iv)(A),
shall be established as follows:
(1) claiming
reimbursement for the sale of an amount of a specific supplemental food item
that exceeds the store's documented inventory of that supplemental food item
for six or more days within a 60-day period. The six or more days do not have
to be consecutive days within the 60-day period. Failure or inability to
provide records or providing false records required under Item (24) of Rule
.0708 of this Section for an inventory audit shall be deemed a violation of
7 C.F.R.
246.12(l)(1)(iii)(B) and
this Subparagraph;
(2) two
occurrences of vendor overcharging within a 12-month period;
(3) two occurrences of receiving,
transacting, or redeeming food benefits outside of authorized channels,
including the use of an unauthorized vendor or an unauthorized person within a
12-month period;
(4) two
occurrences of charging for supplemental food not received by the WIC customer
within a 12-month period;
(5) two
occurrences of providing credit or non-food items, other than alcohol,
alcoholic beverages, tobacco products, cash, firearms, ammunition, explosives,
or controlled substances as defined in
21 U.S.C.
802, in exchange for food benefits within a
12-month period; or
(6) three
occurrences of providing unauthorized food items in exchange for food benefits,
including charging for supplemental food provided in excess of those listed on
the food benefit balance within a 12-month period.
(b) Title
7 C.F.R.
246.12(l)(2)(i) is
incorporated by reference with all subsequent amendments and editions. Except
as provided in 7 C.F.R.
246.12(l)(1)(xii), a vendor
shall be disqualified from the WIC Program for the following State-established
violations in accordance with the number of occurrences and sanctions set forth
below:
(1) One year for two occurrences
within a 12-month period of discrimination on the basis of WIC participation as
referenced in Item (31) of Rule .0708. Each date this violation is detected is
a separate occurrence;
(2) One year
for three occurrences within a 12-month period of failure to properly transact
WIC food benefits by manually entering the EBT card number or entering the PIN
into the POS instead of the WIC participant, scanning the UPC or PLU codes from
UPC codebooks or reference sheets when completing a WIC participant's EBT
transaction, not entering the correct quantity and item price, or not providing
the WIC participant with a receipt that shows the items purchased and the
participant's remaining food benefit balance. Except as provided in
7 C.F.R.
246.12(l)(3)(iv), each
improper transaction is a separate occurrence;
(3) One year for three occurrences within a
12-month period of requiring a cash purchase to transact WIC food benefits.
Except as provided in 7
C.F.R. 246.12(l)(3)(iv),
each transaction requiring a cash purchase is a separate occurrence;
(4) 270 days for three occurrences within a
12-month period of contacting a WIC customer in an attempt to recoup funds for
food benefits or contacting a WIC customer outside the store regarding the
transaction or redemption of WIC food benefits. Each contact with any WIC
customer is a separate occurrence, whether each contact is with the same or
different WIC customers;
(5) 180
days for three occurrences within a 12-month period of failure to provide
program-related records referenced in Item (24) of Rule .0708 when requested by
WIC staff, except as provided in Item (24) of Rule .0708 and Subparagraph
(a)(1) of this Rule for failure or inability to provide records for an
inventory audit. Each request for records is a separate occurrence, whether
each request is for the same or different records;
(6) 180 days for three occurrences within a
12-month period of failure to provide the information referenced in Item (25)
of Rule .0708 when requested by WIC staff. Each request for information is a
separate occurrence, whether each request is for the same or different
information;
(7) 180 days for three
occurrences within a 12-month period of failure to stock the minimum inventory
specified in Item (17) of Rule .0708. Each date this violation is detected is a
separate occurrence;
(8) 90 days
for three occurrences within a 12-month period of stocking WIC supplemental
foods outside of the manufacturer's expiration date. Each date this violation
is detected is a separate occurrence;
(9) 90 days for three occurrences within a
12-month period of failure to allow monitoring of a store by WIC staff. Each
attempt to monitor the store is a separate occurrence;
(10) 90 days for five occurrences within a
12-month period of failure to submit a WIC Price List as required by Item (26)
of Rule .0708. Each written request by the State or local WIC agency for
submission of a WIC Price List is a separate occurrence, whether each request
is for the same or different WIC Price Lists;
(11) 60 days for three occurrences within a
12-month period of failure to mark the current shelf prices of all WIC
supplemental foods on the foods or have the prices posted on the shelf or
display case. Each date this violation is detected is a separate
occurrence;
(12) 60 days for five
occurrences within a 12-month period of requiring the purchase of a specific
brand when more than one WIC supplemental food brand is available. Except as
provided in 7 C.F.R.
246.12(l)(3)(iv), each
transaction requiring the purchase of a specific brand when more than one WIC
supplemental food brand is available is a separate occurrence;
(13) 180 days for three occurrences within a
12-month period of failure to make EBT point of sale equipment accessible to
WIC customers to ensure that EBT transactions are completed in accordance with
Rule .0708; and
(14) 90 days for
three occurrences within a 12-month period of failure to comply with minimum
lane coverage criteria required by
7 CFR
246.12(z)(2) and Rule
.0708(20)(c) of this Section;
If during the course of a single investigation the State
agency determines that a vendor has committed multiple State-established
violations, the disqualification periods shall be cumulative, provided that the
total period of disqualification shall not exceed one year for
State-established violations investigated as part of a single investigation, as
defined in Paragraph (c) of this Rule.
(c) For investigations pursuant to this
Section, a single investigation is:
(1)
Compliance buy(s) conducted by undercover investigators within a 12-month
period to detect the following violations:
(A) buying or selling food benefits for cash
(trafficking);
(B) selling
firearms, ammunition, explosives, or controlled substances as defined in
21 U.S.C.
802, in exchange for food benefits;
(C) selling alcohol or alcoholic beverages or
tobacco products in exchange for food benefits;
(D) vendor overcharging;
(E) receiving, transacting, or redeeming food
benefits outside of authorized channels, including the use of an unauthorized
vendor or an unauthorized person;
(F) charging for supplemental food not
received by the WIC customer;
(G)
providing credit or non-food items, other than alcohol, alcoholic beverages,
tobacco products, cash, firearms, ammunition, explosives, or controlled
substances as defined in 21
U.S.C. 802, in exchange for food
benefits;
(H) providing
unauthorized food items in exchange for food benefits, including charging for
supplemental food provided in excess of those listed on the food benefit
balance;
(I) failure to properly
transact WIC food benefits by manually entering the EBT card number or entering
the PIN into the POS instead of the WIC participant, scanning the UPC or PLU
codes from UPC codebooks or reference sheets when completing a WIC
participant's EBT transaction, not entering the correct quantity and item
price, or not providing the WIC participant with a receipt that shows the items
purchased and the participant's remaining food benefit balance;
(J) requiring a cash purchase to transact WIC
food benefits; or
(K) requiring the
purchase of a specific brand when more than one WIC supplemental food brand is
available.
(2)
Monitoring reviews of a vendor conducted by WIC staff within a 12-month period
which detect the following violations:
(A)
failure to stock the minimum inventory specified in Item (17) of Rule
.0708;
(B) stocking WIC
supplemental food outside of the manufacturer's expiration date;
(C) failure to allow monitoring of a store by
WIC staff;
(D) failure to provide
program-related records referenced in Item (24) of Rule .0708 when requested by
WIC staff;
(E) failure to mark the
current shelf prices of all WIC supplemental foods on the foods or have the
prices posted on the shelf or display case;
(F) unauthorized use of the "WIC" acronym or
the logo, as defined in WIC Policy Memo #2009-1, which is hereby incorporated
by reference, including subsequent amendments and editions, and available free
of charge at
https://www.fns.usda.gov/wic/clarification-use-wic-acronym-and-logo;
(G) failure to ensure that EBT point of sale
equipment is accessible to the WIC customer; or
(H) failure to comply with minimum lane
coverage criteria required by 7 CFR 246.12(z)(2)
and Rule .0708(20)(c) of this Section.
(3) Any other method used by the State or
local agency to detect the following violations by a vendor within a 12-month
period:
(A) failure to attend annual vendor
training;
(B) failure to submit a
WIC Price List as required by Item (26) of Rule .0708;
(C) discrimination on the basis of WIC
participation as referenced in Item (31) of Rule .0708.
(D) contacting a WIC customer in an attempt
to recoup funds for food benefits or contacting a WIC customer outside the
store regarding the transaction or redemption of WIC food benefits;
(E) nonpayment of a claim assessed by the
State agency;
(F) providing false,
erroneous, or misleading information to the State or local WIC
agency;
(G) claiming reimbursement
for the sale of an amount of a specific supplemental food item which exceeds
the store's documented inventory of that supplemental food item for a specific
period of time, or failure or inability to provide records or providing false
records required under Item (24) of Rule .0708 for an inventory
audit;
(H) failure to purchase
infant formula, exempt infant formula or WIC-eligible medical foods from the
sources specified in Item (3) of Rule .0707; or
(I) providing WIC customers infant formula,
exempt infant formula, or WIC eligible medical food that was not purchased from
the sources specified in Item (3) of Rule .0707.
(d) The SNAP disqualification
provisions in 7 C.F.R.
246.12(l)(1)(vii) are
incorporated by reference with all subsequent amendments and
editions.
(e) The participant
access provisions of 7 C.F.R.
246.12(l)(1)(ix) and
246.12(l)(8) are
incorporated by reference with all subsequent amendments and editions. The
existence of any of the factors listed in Parts (f)(3)(A), (f)(3)(B) or
(f)(3)(C) of this Rule shall show adequate participant access provided there is
no geographic barrier, such as an impassable mountain or river, to using the
other authorized WIC vendors referenced in these Parts. The agency shall not
consider other indicators of inadequate participant access when any of these
factors exist.
(f) The following
provisions apply to monetary and civil money penalties assessed in lieu of
disqualification of a vendor:
(1) The civil
money penalty formula in 7
C.F.R. 246.12(l)(l)(x) is
incorporated by reference with all subsequent amendments and editions, provided
that the vendor's average monthly redemptions shall be calculated by using the
six-month period ending with the month immediately preceding the month during
which the notice of administrative action is dated.
(2) The State agency may also impose monetary
penalties in accordance with
G.S.
130A-22(c1) in lieu of
disqualification of a vendor for the State-established violations listed in
Paragraph (b) of this Rule when the State agency determines that
disqualification of a vendor would result in participant hardship in accordance
with Subparagraph (f)(3) of this Paragraph.
(3) In determining whether to disqualify a
WIC vendor for the State-established violations listed in Paragraph (b) of this
Rule, the agency shall not consider other indicators of hardship if any of the
following factors, which show lack of hardship, are found to exist:
(A) the noncomplying vendor is located
outside of the limits of a city, as defined in
G.S.
160A-1(2), and another WIC
vendor is located within seven miles of the noncomplying vendor;
(B) the noncomplying vendor is located within
the limits of a city, as defined in
G.S.
160A-1(2), and another WIC
vendor is located within three miles of the noncomplying vendor; or
(C) a WIC vendor, other than the noncomplying
vendor, is located within one mile of the local agency at which WIC
participants are certified to receive WIC food benefits.
(4) The provisions for failure to pay a civil
money penalty in 7 C.F.R.
246.12(l)(6) are
incorporated by reference with all subsequent amendments and editions. These
provisions also apply to a vendor that fails to pay a monetary penalty imposed
under G.S.
130A-22(c1).
(g) The provisions of
7 C.F.R.
246.12(l)(1) (viii)
prohibiting voluntary withdrawal from the WIC Program or nonrenewal of the WIC
Vendor Agreement as an alternative to disqualification are incorporated by
reference with all subsequent amendments and editions.
(h) The provisions of
42 USC
1786(f)(26) and
7 CFR 246.12(l)(3) regarding
vendor notification of violations are incorporated by reference with all
subsequent amendments and editions.
(i) The State agency may offset payments to
an authorized vendor if the vendor fails to reimburse the State agency in
accordance with Item (27) of Rule .0708.
(j) In accordance with
7 C.F.R.
246.12(l)(7) or
246.12(u)(5) or
both, North Carolina's procedures for dealing with abuse of the WIC program by
authorized WIC vendors under the rules of this Section do not exclude or
replace any criminal or civil sanctions or other remedies that may be
applicable under any federal or State law.
(k) Except as provided in
7 C.F.R.
246.18(a)(2), an authorized
WIC vendor shall be given at least 15 days advance written notice of any
adverse action which affects the vendor's participation in the WIC Program. The
vendor appeal procedures shall be in accordance with
10A NCAC
43D .0800.
Authority
G.S.
130A-361;
7 C.F.R.
246.12;
7 C.F.R. 246.18;
42 U.S.C.
1786;
Eff. February 1,
2013;
Pursuant to
G.S.
150B-21.3A, rule is necessary without
substantive public interest Eff. December 23, 2017;
Amended Eff.
March 1, 2020; January 1, 2018.
