La. Admin. Code tit. 48 § V-4511

Current through Register Vol. 50, No. 9, September 20, 2024

Section V-4511 - Administrative Review of Adverse Actions

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.

La. Admin. Code tit. 48, § V-4511

Promulgated by the Department of Health and Human Resources, Office of Preventive and Public Health Services, LR 13:246 (April 1987), Amended by the Department of Health, Office of Public Health, LR 43340 (2/1/2017), Amended LR 491408 (8/1/2023).

AUTHORITY NOTE: Promulgated in accordance with R.S. 46:972.