Ala. Admin. Code r. 420-10-2-.06

Current through Register Vol. 42, No. 8, May 31, 2024

Section 420-10-2-.06 - Appeals For Vendors And Local Agencies

(1)Vendor appeals

(a)Adverse actions subject to administrative review.

The Department shall provide full administrative reviews to vendors that appeal the following adverse actions:

1. Denial of authorization based on the application of the vendor selection criteria for minimum variety and quantity of authorized supplemental foods or on a determination that the vendor is attempting to circumvent a sanction.

2. Termination of a vendor contract for cause.

3. Disqualification.

4. Imposition of a fine or a civil money penalty in lieu of disqualification.

5. Denial of authorization based on the vendor selection criteria for business integrity or for a current Supplemental Nutrition Assistance Program disqualification or civil money penalty for hardship.

6. Denial of authorization based on a state agency-established vendor selection criteria if the basis of the denial is a WIC vendor sanction or a Supplemental Nutrition Assistance Program withdrawal of authorization or disqualification.

7. Denial of authorization based on the Department's vendor limiting criteria.

8. Denial of authorization because a vendor submitted its application outside the time frames during which applications are being accepted and processed as established by the Department under 7 CFR § 246.12(g)(7).

9. Termination of a vendor contract due to a change in ownership, a change in location, or the cessation of operations.

10. Disqualification based on a trafficking conviction.

11. Disqualification based on the imposition of a Supplemental Nutritional Assistance Program civil money penalty for hardship.

12. Disqualification or a civil money penalty imposed in lieu of disqualification based on a mandatory sanction imposed by another WIC state agency.

13. A civil money penalty imposed in lieu of disqualification based on a Supplemental Nutritional Assistance Program disqualification under 7 CFR § 246.12(1)(1)(vii).

14. Denial of authorization based on a determination of whether an applicant vendor is currently authorized by the Supplemental Nutritional Assistance Program.

15. Denial of authorization based on the application of the vendor selection criteria for competitive pricing.

16. The application of the Department's vendor peer group criteria and the criteria used to identify vendors that are above-50-percent vendors or comparable to above-50-percent vendors.

(b) Actions not subject to administrative reviews. The Department may not provide administrative reviews pursuant to this section to vendors that appeal the following actions:

1. The validity or appropriateness of the Department's vendor limiting criteria or vendor selection criteria for minimum variety and quantity of supplemental foods, business integrity, and current Supplemental Nutrition Assistance Program disqualification or civil money penalty for hardship.

2. The validity or appropriateness of the Department's participant access criteria and the Department's participant access determinations.

3. The Department's determination regarding whether a vendor had an effective policy and program in effect to prevent trafficking and that the ownership of the vendor was not aware of, did not approve of, and was not involved in the conduct of the violation.

4. Denial of authorization if the Department's vendor authorization is subject to the procurement procedures applicable to the Department.

5. The expiration of a vendor's agreement.

6. Disputes regarding food instrument or cash-value voucher payments and vendor claims other than the opportunity to justify or correct a vendor overcharge or other error, as permitted by 7 CFR § 2 46.12(k)(3).

7. Disqualification of a vendor as a result of disqualification from the Supplemental Nutritional Assistance Program.

8. The validity or appropriateness of the Department's selection criteria for competitive pricing, including but not limited to, vendor peer group criteria and the criteria used to identify vendors that are above-50-percent vendors or comparable to above-50-percent vendors.

9. The Department's determination regarding whether to include or exclude an infant formula manufacturer, wholesaler, distributor, or retailer from the Department's approved list pursuant to 7 CFR § 246.12(g)(11).

10. The validity or appropriateness of the Department's prohibition of incentive items and the Department's denial of an above-50-percent vendor's request to provide an incentive item to customers pursuant to 7 CFR § 246.12(h) (8).

11. The Department's determination regarding whether to notify a vendor in writing when an investigation reveals an initial violation for which a pattern of violations must be established to impose a sanction pursuant to 7 CFR § 246.12(1) (3).

(c)Effective date of adverse actions against vendors.

1. The Department shall make denials of authorization and disqualifications imposed under 7 CFR § 246.12(1)(1)(i) effective on the date of receipt of the notice of adverse action.

2. The Department shall make all other adverse actions effective no earlier than 15 days after the date of the notice of the adverse action and no later than 90 days after the date of the notice of adverse action or, in the case of an adverse action that is subject to administrative review, no later than the date the vendor receives the administrative decision.

(2)Local agency appeals.

(a)Adverse actions subject to full administrative reviews. The Department shall provide full administrative reviews to local agencies that appeal the following adverse actions:

1. Denial of a local agency's application.

2. Disqualification of a local agency.

3. Any other adverse action that affects a local agency's participation.

(b)Actions not subject to administrative review.

The Department may not provide administrative reviews pursuant to this section to local agencies that appeal the following actions:

1. Expiration of the local agency's agreement.

2. Denial of a local agency's application if the Department's local agency selection is subject to the procurement procedures applicable to the Department.

(c)Effective date of adverse actions against local agencies.

1. The Department shall make denials of local agency applications effective immediately.

2. The Department shall make all other adverse actions effective no earlier than 60 days after the date of the notice of the adverse action and no later than 90 days after the date of the notice of adverse action or, in the case of an adverse action that is subject to administrative review, no later than the date the local agency receives the review decision.

(3)Full administrative review procedures. The Department's administrative review procedures provide for the following:

(a) Written notification of the adverse action.

1. The Department shall give written notification of a proposed adverse action, the cause(s) for the action, and the effective date of the proposed adverse action. This notification must also advise the vendor or local agency of its right to a full administrative review, the opportunity to present its case, the opportunity to confront and cross-examine witnesses, the opportunity to be represented by counsel, and the opportunity to examine evidence prior to the full administrative review hearing. The time period for requests for appeal must be given in the notification.

2. When a vendor's disqualification is based on the violations listed in §246.12 (1) (1), the written notification must include the following statement: "This disqualification from WIC may result in disqualification as a retailer in the Supplemental Nutrition Assistance Program. Such disqualification is not subject to administrative or judicial review under the Supplemental Nutrition Assistance Program."

3. Except for denials of authorization and disqualifications imposed under 7 CFR § 246.12(1) (1) (i), the Department shall provide vendors with 15 days advance notice before the effective date of the adverse action.

4. Except for denials of local agency applications, the Department shall provide local agencies with 60 days advance notice before disqualification or 30 days before termination.

(b) An aggrieved vendor or local agency shall request a full administrative review hearing within 15 days of receipt of a notice of adverse action. Failure to submit a specific, written request within 15 days constitutes a waiver of the vendor or local agency's right to a full administrative review.

(c) An aggrieved vendor or local agency shall submit a written request for a full administrative review hearing to: Alabama Department of Public Health; Bureau of Family Health Services; Division of WIC; The RSA Tower, Suite 1300; P.O. Box 303017; Montgomery, AL 36130-3017.

(d) The Department shall give an aggrieved vendor or local agency at least 10 days advance written notice of the time, place, and date of the full administrative review hearing.

(e) An aggrieved vendor or local agency has one opportunity to reschedule the administrative review date upon specific written request.

(f) An aggrieved vendor or local agency has the right to cross-examine adverse witnesses. If necessary to protect the identity of Department investigators, such examination may be conducted behind a protective screen or other device (also referred to as an "in camera" examination).

(g) An aggrieved vendor or local agency has the right to an impartial decision-maker, whose determination is based solely on whether the Department has correctly applied federal and state statutes, regulations, policies, and procedures governing the WIC Program, according to the evidence presented at the review.

(h) The Department shall provide written notification of the review decision, including the basis for the decision, within 90 days from the date of receipt of a vendor's request for an administrative review or within 60 days from the date of receipt of a local agency's request for an administrative review. These time frames are only administrative requirements for the Department and do not provide a basis for overturning the Department's adverse action if a decision is not made within the specified time frame.

(4)Abbreviated Review Hearings. The Department provides full administrative reviews in all adverse actions referenced in 7 CFR § 246.18(a)(1)(ii). Therefore, pursuant to 7 CFR § 246.18(A)(1)(ii) and 7 CFR § 246.18(c), abbreviated reviews are not available to aggrieved parties.

(5)Civil Monetary Penalties. The hearing official and the WIC director have the authority to impose a civil monetary penalty or fine in lieu of disqualification, if inadequate participant access exists. The calculations used to compute the amount(s) can be found in 7 CFR § 246.12 and § 22-12C-5, Code of Ala. 1975. Civil monetary penalties may not be imposed in lieu of disqualification for third or subsequent sanctions for violations listed in the Vendor Sanctions, Category VII, Category VI, and Category V.

(6)Continuing responsibilities. Appealing an adverse action does not relieve a vendor or local agency that is permitted to continue WIC Program operations while its appeal is in process from the responsibility of continued compliance with the terms of any written agreement with the Department. The WIC director shall allow a vendor to continue in the WIC Program while an administrative review is in process, except for a vendor disqualified due to trafficking conviction and a vendor disqualified based upon a SNAP disqualification, which is not subject to an administrative or judicial review under the program.

Ala. Admin. Code r. 420-10-2-.06

New Rule: Filed October 24, 1995; effective November 28, 1995. Repealed and New Rule: Filed October 20, 1999; effective November 24, 1999. Amended: Filed May 16, 2002; effective June 20, 2002. Repealed and New Rule: Filed November 20, 2003; effective December 25, 2003. Repealed and New Rule: Filed August 20, 2004; effective September 24, 2004. Amended: Filed November 8, 2006; effective December 13, 2006. Amended: Filed April 16, 2012; effective May 12, 2012. Amended: Filed May 17, 2013; effective June 20, 2013.

Adopted by Alabama Administrative Monthly Volume XXXVI, Issue No. 07, April 30, 2018, eff. 5/28/2018.

Authors: James M. Richard; Carolyn Battle; Stacey Neumann

Statutory Authority:Code of Ala. 1975, §§ 22-2-2(6), 22-12c-2 and 3.