12VAC5-195-10. General authority.
The Special Supplemental Nutrition Program for Women, Infants and Children (WIC) was authorized as part of the Child Nutrition Act of 1966, Section 17 (42 USC § 1786), to provide supplemental foods and nutrition education to pregnant, postpartum and breastfeeding women, infants and young children from families with inadequate income. The Virginia WIC Program is regulated by federal regulations published in the Code of Federal Regulations, 7 CFR Part 246, Special Supplemental Nutrition Program for Women, Infants and Children. The state regulations shall serve as a supplement to 7 CFR Part 246.
The WIC Farmers' Market Nutrition Program was established in
1992 as P. L. 102-314 to provide resources in the form of fresh, nutritious,
unprepared foods (fruits, vegetables and cut herbs) from farmers' markets to
WIC participants and to expand the awareness, use of and sales at farmers'
markets. The Virginia WIC Farmers' Market Nutrition Program is regulated by
federal regulations published in the Code of Federal Regulations, 7 CFR Part
A. The Virginia WIC Program serves women who are breastfeeding, pregnant, or have just given birth; infants less than one year old; and children less than five years old. WIC participants must be Virginia residents and meet the financial and nutritional requirements.
B. The Virginia WIC Program provides special supplemental
foods to eligible participants through a retailer delivery system (7 CFR
246.12). Food benefits are issued by local agencies to eligible participants
using food instruments (7 CFR 246.10). Participants redeem their food
instruments at any authorized retailer or entity. The state agency enters into
an agreement with authorized
stores retailers (7 CFR 246.12). This
agreement identifies the obligations, rights and responsibilities of both the
authorized retail store retailers and the state agency. Retailers
deposit these food instruments into their bank account. The state agency pays
authorized retailers a reasonable dollar amount for the foods purchased, as
listed on the deposited food instruments (7 CFR 246.12).
C. The state agency shall promulgate policies, guidelines, manuals and training resources to facilitate operations of the Virginia WIC Program in accordance with its contractual agreement with Food Nutrition Service (FNS) (7 CFR 246.3); the guidelines and instructions issued by FNS in policy letters; and management evaluations and audits and the WIC Program State Plan of Operations.
The following words and terms when used in this chapter shall have the following meanings, unless the context clearly indicates otherwise:
appeal review" means
the procedure through which applicants and/or retail stores retailers
may appeal a state agency's administrative action, including program
disqualification, denied authorization and other termination reasons adverse
"Agency representative" means staff from the state agency, a local agency, a contractor, or other designated individuals trained to conduct WIC functions and monitor retailers.
"Approved food list" means a brochure or method used by the WIC Program to communicate to eligible participants, retailers, local agencies and other interested parties which authorized supplemental foods may be purchased using WIC food instruments. The approved food list is a guide and must be used with the printed food instrument, which may identify specific brands or additional products not stated on the approved food list that may be purchased by participants.
"Authorization" means the process by which the state
agency assesses, selects and enters into an agreement with
that apply or subsequently reapply to be authorized. "Automated clearinghouse" or "ACH
credit" or "direct deposit" means a method used to reimburse
stores for certain types of processed food instruments (i.e., "Over FI
Max."). A credit is made to the store's designated bank account and routing
number using the automated clearinghouse process. "Business economic areas" or "BEAs"
mean a categorization method established by the United States Department of
Commerce Bureau of Economic Analysis and used by the state agency to identify
geographically similar trade and economic communities. Some more populated BEAs
are further broken down into smaller subsets or peer groupings, based upon
number of unique participants served by authorized stores.
"Caretaker" means a person 18 years of age or older, unless approved at the discretion of a competent professional authority, designated by a parent or legal guardian to certify an infant/child, obtain and redeem food instruments and attend nutrition education. A caretaker may be any person who has detailed knowledge of the nutritional needs and eating habits of the infant/child. A parent or legal guardian may designate one caretaker per family ID number.
"Caseload" means the number of WIC participants
assigned to a local agency by the state agency.
"Cash value food benefits" means a special food instrument that has been issued to eligible participants for a specific dollar amount that must be used to purchase fruits and vegetables. Unless stated otherwise, all references to food instruments include cash value food benefits, as well as food and formula food instruments.
"Civil monetary penalty" or "CMP" means an administrative fine offered to a retailer in lieu of disqualification if inadequate participant access exists as determined by the state agency.
"Direct deposit ACH" means a method used to reimburse retailers for certain types of processed food instruments (i.e., "Over FI Max"). A credit is made to the retailer's designated bank account and routing number using the automated clearinghouse process.
"Enrollment" means the process all applicants and
stores retailers must complete in order for a store
retailer to be eligible to accept WIC food instruments.
"Food instrument" means a voucher, check, electronic benefits transfer card (EBT), coupon, or other document that is used by a participant to obtain supplemental foods.
"Formula flyer" means a handout or method used by the state agency to communicate to eligible participants, retailers, local agencies, and other interested parties that formulas may be purchased at authorized retailers.
"Image replacement document" or "IRD"
means a legal copy of a deposited food instrument that is created and
transmitted by a
store's retailer's depository bank to the WIC
Program's backend processor for payment consideration.
"Informal settlement meeting" means a meeting held
with an authorized
store retailer or applicant representative and
the state WIC director whose purpose is to review and clarify outstanding WIC
Program administrative issues.
"Legal guardian" means an individual who has been appointed by a court of law or the Department of Social Services, or other legal means, to have primary, physical custody of a minor. A legal guardian shall be authorized to provide eligibility information for an applicant, consent to medical treatment of the applicant, and shall be held legally bound if sanctions are imposed.
"Peer group" means a classification of applicants
stores retailers into groups based on common
characteristics or criteria that affect food prices for the purpose of applying
appropriate competitive price criteria to stores retailers at
authorization and limiting payments for foods at competitive pricing levels. A
retailer's peer group is used to determine competitive pricing levels at
initial authorization and establish the reimbursement maximums paid by the
"Postpayment review" means an analysis of paid food
instruments redeemed by authorized retailers in order to determine if pricing
and redemption discrepancies exist. Based upon this analysis, a
claim against the retail store retailer may be established by the
"Prepayment edit" means a price adjustment made to
the reimbursement level given to retailers. This editing process can be either
automated or a manual screening of deposited food instruments done by an
independent banking contractor, prior to releasing payment to authorized
"Relatives" means spouses, parents, children, brothers, sisters, aunts, uncles, nephews, nieces, grandparents, and grandchildren.
"Retailer" means a vendor, retail store, commissary, or entity authorized by the Virginia WIC Program to accept WIC food instruments for the various types of foods listed on food instruments. The term "retailer" is equivalent to the term "vendor" used in federal regulations (7 CFR 246.12).
"Retailer agreement" means a written agreement that
establishes the respective roles and responsibilities of the
agency and authorized retailers in complying with federal and state
"Retailer claim" means the state agency has determined an authorized retailer committed a violation of the retailer agreement that affects the payment status of one or several food instruments.
"Retailer manual" means a series of written documents that communicate administrative procedures for the Virginia WIC Program that regulate both authorized retailers and applicants. The Retailer Manual is part of the WIC Program State Plan that must be submitted and approved by USDA.
"Sanctions" mean a penalty imposed by the state
agency upon an authorized retailer for a specific violation outlined in the
retailer manual or retailer agreement.
"State agency" means the Virginia
Department of Health and the delegated authority to the Division of
and Community Nutrition Services that Community Nutrition, which has
the administrative responsibility for managing the Virginia WIC Program.
"Termination" means the act of ending a
store's retailer's WIC Program authorization for administrative
reasons that include but are not limited to a change of ownership,
closed store retailer location, voluntary withdrawal, and
"Unique participant" means the number of unduplicated individuals who have redeemed one or more food instruments at a retail store during a specific period.
"United States Department of Agriculture" or "USDA" means the federal agency that provides funding for the WIC Program on behalf of Congress.
"Vendor claim" means the state agency has
determined an authorized store committed a violation of the retailer agreement
that affects the payment status of one or several food instruments. The state
agency may delay payment or establish a claim in the amount of the full
purchase price of each food instrument that contained the overcharge or other
error. The state agency will bill and recoup the funds paid against these
improperly redeemed food instruments. "Vendor manual" means a series of written
documents that communicate administrative policies and procedures for the
Virginia WIC Program that affect both authorized retailers and applicants. The
Vendor Manual is part of the WIC Program State Plan that must be submitted and
approved by USDA. "Virginia Department of Health" or
"VDH" means the state agency that oversees the Virginia WIC
"Waiting list" means a list implemented by the state agency for individual participants when the maximum caseload is reached.
"Warning" means one or more incidents of
noncompliance with program requirements were documented. The state agency sends
a written warning letter to the owner or store manager to advise him of any
documented violations. A warning letter is not sent to the owner or store
manager for selective documented violations that affect the integrity of the
investigative process, including but not limited to overcharges, fraud, and
"WIC sales" means annual sales based on WIC redemption paid by the state agency to an authorized retailer.
12VAC5-195-70. Eligibility requirements.
A. Adjunctive financial eligibility requirements. Adjunctive,
income financial eligibility is determined pursuant to
7 CFR 246.7. Documentation is required as proof of participation in programs
that qualify an applicant for adjunctive financial eligibility. The state
agency also allows the following state-administered programs Family
Access to Medical Insurance Security Plan (FAMIS) and a $2.00 co-pay level
to be used in determining adjunctive income financial eligibility :. 1. Family Access to Medical Insurance Security Plan (FAMIS)
and a $2.00 co-pay level; and. 2. FAMIS MOMS program.
B. Local agencies shall serve institutionalized applicants if they meet all eligibility requirements.
C. For determining income eligibility, local agency personnel shall use the applicant's current or annualized income, whichever is the best indication of circumstances.
D. In determining income eligibility, the state agency
shall utilize all income exclusions listed in 7 CFR 246.7.
E. Applicants who are not adjunctively financially eligible shall have financial eligibility determined using income guidelines equaling the income guidelines established under § 9 of the National School Lunch Act for reduced price school meals per 7 CFR 246.7.
F. An applicant claiming multiple fetuses shall have the
stated number used at the time of certification, but
is required to shall
be required to provide written verification by a physician or nurse
practitioner working under the supervision of a physician within 90 days of
A. A parent or legal guardian may have the privilege, but not
the right, to designate one caretaker per family ID number to certify an infant
, to who may obtain and redeem food instruments ,
and to attend nutrition education. The caretaker assumes all of the
rights and responsibilities of the parent or legal guardian who designates them
him. A caretaker shall be designated only when the local agency cannot
accommodate the needs of the parent to attend the local agency to obtain WIC
benefits. In the absence of a parent or legal guardian, a caregiver shall
provide reasonable documentation of his status as a primary caregiver.
Reasons supporting the designation of a caretaker shall be documented and become
part of the participant's record. The authority to implement the caretaker
policy will be granted individually to local agencies by the state WIC
director. The parent is always encouraged to be the primary recipient of
all WIC benefits.
B. A caretaker may be designated in two situations:
1. A parent or legal guardian's declaration of hardship or
2. The caretaker providing reasonable documentation of his role in the absence of a parent or legal guardian.
B. C. Local agency personnel shall only
discuss the option of designating a caretaker if the participant, parent,
or legal guardian indicates one of the following situations declares
hardship that prevents him from coming to the local agency during established
regular and alternative hours due to:
The participant, parent or legal guardian expresses
difficulty with attending the local agency for nutrition education WIC benefits
Conflict of schedules due to work, school, or some other valid reason;
The local agency determines difficulty with the participant,
parent or legal guardian attending the local agency through objective methods
such as the no show reports, missed appointments, or frequently rescheduled
appointments Lack of transportation; or
The local agency determines difficulty with the participant,
parent or legal guardian attending the local agency during established
alternative hours An infant or child residing with a family member or
D. The caretaker shall provide reasonable documentation to substantiate his relationship with the infant or child and his role as primary caretaker. Reasonable documentation may include:
1. Signed caretaker designation form, WIC-311, indicating the designation of caretaker that may be obtained prior to the first local agency visit;
2. Signed and witnessed letter from the legal guardian or parent designating a caretaker and reason for the legal guardian's or parent's inability to certify an infant or child, obtain and redeem food instruments, and attend nutrition education.
3. Documentation of the parent or legal guardian's enrollment, residence, or confinement in a hospital treatment program, shelter, penal institution, or other institution.
12VAC5-195-140. Food instruments.
A. Food instrument issuance. All food instruments shall
be issued through the automated system only after eligibility has been
only when the participant, parent or legal guardian, caretaker,
or proxy is physically present at the local agency to pick up their the
food instrument. Failure by the participant, parent, legal guardian, caretaker,
or proxy to attend the initial nutrition education appointment may result in
reduced WIC benefits for that month.
B. Lost food instruments. Replacement of lost, valid, not redeemed food instruments shall only occur once within the entire duration of the participant, parent, caretaker, or legal guardian's receipt of WIC services, unless approval is obtained from the state agency. Lost food instruments shall only be replaced for one of the following situations:
1. A participant leaving home because of
2. A change in full legal custody, including when infants/children are removed from home and placed in foster care or parental custody is changed; or
3. An event out of the control of participant, such as a fire or natural disaster that is publicly documented.
C. Stolen food instruments. Food instruments reported as
stolen shall only be replaced when a police report is provided that states that
the valid, not redeemed, WIC food instruments were
the stolen items.
Stolen food instruments shall not be replaced without a police report, unless
costs are associated with the police report and a waiver is granted by the
state agency. Stolen food instruments shall only be replaced once within the
entire duration of the participant, parent, caretaker, or legal guardian's
receipt of WIC services, unless approval is obtained from the state agency.
D. Mailing WIC food instruments. Food instruments shall only be mailed with prior approval from the competent professional authority for individual participants if the participant has already received the required secondary nutrition education contact or if the participant will be able to receive nutrition education at the next visit within the certification period. Justification for mailing food instruments to individuals, families and groups includes:
1. Illness or disability resulting in the participant being
physically unable to be present as documented by medical records
meeting the Americans with Disabilities Act criteria (28 CFR Part 35) for
physically unable to be present;
2. Imminent childbirth as documented by medical records;
3. Distance to travel, especially in rural areas with a minimum
60-mile roundtrip travel distance between home and the local WIC clinic, as
confirmed by the local WIC coordinator;
4. Other travel distance for participants with unique transportation challenges;
5. Computer failure at the local agency site;
6. Natural disasters;
7. Complete systemwide failure of automated system; and
8. Difficulty obtaining complete prescription for a
as that has been approved by a local WIC
Food instruments shall only be mailed for a
period. Requests beyond the one-month three-month period shall
require approval by the state agency.
12VAC5-195-150. Alternative office hours.
Alternative office hours shall be offered outside of the
regular operating hours of Monday through Friday, between 8 a.m. and
p.m. to address barriers in accessing WIC services for current and potential applicants
and participants. The local agency shall offer a minimum of 16 alternative
office hours per month and provide documentation to the state agency that
the alternative hours accommodate the needs of the current client caseload.
12VAC5-195-200. Program abuse and sanctions.
A. The state agency determines program abuse and sanctions that may be issued to applicants and participants. When more than one abuse is involved at a time, the sanction shall be based on the more serious abuse.
B. If an abuse occurs more than 12 months after the last abuse, the local agency shall process the abuse as a first offense.
C. When more than three abuses in a 12-month period occur, the local agency shall issue a three-month temporary disqualification.
D. Program abuses and assigned sanctions are as follows:
Number of Offenses
Any deliberate misrepresentation of income, name, residence, family size, medical data, or date of birth to obtain WIC benefits
Dual participation redeeming food instruments from two programs/agencies in same month
Assessed claim for $100 or more
Assessed second or subsequent claim for any amount
2nd or subsequent
Attempting to steal or actually stealing food instruments from the local agency or another participant, if under $100
Selling, exchanging or giving away food instruments, food, or formula
Redeeming WIC food instruments reported as lost or stolen, if under $100
Attempting to redeem or redeeming WIC food instruments for nonfood items (i.e., diapers, wine, cigarettes)
Physically abusing the WIC or
Accepting cash or credit from a
Alteration of WIC food instruments (includes date, quantities, types of food)
Creating a public nuisance at the local agency or the
Attempting to redeem or redeeming WIC food instruments for unauthorized food, formula or food amounts
Allowing unauthorized person(s) to use the WIC ID Folder to pick-up and/or redeem WIC food instruments
Deliberately damaging or destroying WIC food instruments
Redeeming WIC food instruments before or after valid spend dates
Attempting to redeem or redeeming food instruments at
12VAC5-195-210. Collection of improperly issued instruments/claims against participants.
The state agency
may shall establish a claim
against a participant for the full value of benefits improperly obtained or
disposed of and any fees or additional expenses incurred as a result
of a participant violation. These improper acts include, but are not
limited to: Participant violations include:
1. Inaccurate certification information;
2. Dual participation violations;
Proxy abuses Violation of the WIC guidelines or
rules by the proxy or caretaker; or
4. Retention of future food instruments after disqualification.
12VAC5-195-230. Conflict of interest.
A. Individuals involved in administering the WIC Program may not, without prior written approval from the WIC Director or his designee or the director of the local health district:
1. Act as a proxy for a participant;
2. Have a direct financial interest in an authorized WIC
retail store. retailer; or
3. Complete an onsite stocking visit of an authorized retailer at which they or a relative is employed.
B. Individuals involved in administering the WIC Program shall
not certify or issue food instruments to themselves or relatives.
include spouses, parents, children, brothers, sisters, aunts, uncles, nephews,
nieces, grandparents and grandchildren.
C. Additional conflict of interest regulation may be found in 12VAC5-195-460.
D. This section is not meant to replace or abrogate the Virginia State and Local Government Conflict of Interests Act, Chapter 31 (§ 2.2-3100 et seq.) of Title 2.2 of the Code of Virginia.
Vendor Retailer Requirements
12VAC5-195-280. Enrollment procedures.
A. The state agency
accepts shall accept
applications from new store retailer applicants year round.
Stores Retailers seeking authorization shall comply
with 7 CFR 246.12 and sell a range and variety of staple foods and
WIC-approved formulas at a permanent fixed location, as specified in the
retailer agreement and application package. Only one authorization approval
will be granted by the state agency to each eligible location selected for
program authorization. Stand-alone pharmacies and any other types of entities
that cannot meet all of the general requirements outlined in this section will
shall be denied WIC Program authorization.
Store Retailer applicants shall complete the
following requirements to become authorized for WIC Program participation:
1. Submit all applications, including pricing updates, using an electronic, Internet-based method that has been approved by the WIC Program;
2. Submit prices for all mandatory food and formula items, a
signed retailer agreement, supplemental informational form, direct deposit ACH
form, and other required forms as deemed necessary to evaluate
or an applicant's qualifications;
3. Pass a competitiveness price assessment completed by the WIC
Program. The state agency shall determine
that whether the prices
submitted as part of the new store retailer application process
are price competitive when compared to other stores retailers
located in the store's retailer's assigned peer group;
4. Provide documentation to the state agency, upon request,
that a satisfactory business integrity record exists. None of the
retailer's current owners, officers, or managers shall have been
convicted of or had a civil judgment entered against them for conduct
demonstrating a lack of business integrity, within the past six years;
5. Pass an unannounced onsite visit to determine if the
retailer has met the minimum stocking requirement, has available
for sale the variety and selection of foods as stated on the supplemental
informational form, and has posted prices that are not higher than prices
submitted as part of the application process. The visit shall also verify that
the store's retailer's hours of operation and number of cash
registers were accurately reported;
6. Pass an onsite visit to determine if the type and variety of
foods sold would qualify the
store retailer to earn more than 50%
of its annual sales solely from the WIC Program. If the store retailer
is likely to be an above 50% vendor retailer, then it shall be
7. Attend a mandatory new
store retailer training
session conducted by either state agency staff or a certified corporate trainer
within 30 calendar days after the retail store retailer passes a
an unannounced stocking and price verification visit. Provide
documentation to the state agency that this mandatory training has been
completed. Store applicants shall provide to the state agency this
documentation within 30 calendar days after meeting all other enrollment
requirements that this mandatory training has been completed;
8. Provide training to
store retailer personnel
and cashiers on proper WIC food instrument handling procedures;
9. Return to the state agency all required paperwork within 14
days after receipt including
, but not limited to, a signed retailer
agreement, if applicable; supplemental informational form; direct deposit ACH
form; and other information deemed necessary to evaluate a retailer's or
applicant's qualifications; and
10. Receive from the state agency a packet containing an
authorization acknowledgement letter granting WIC Program authorization, a
Retailer Manual for the Virginia WIC Program, a WIC window decal, and an
D. Newly authorized
stores retailers shall begin
accepting WIC food instruments within 15 calendar days after receiving their
program authorization stamp and final acknowledgment letter. Authorized stores
retailers are required to contact the state agency in writing if the store
will be retailer is unable to meet this program requirement. Failure
to begin accepting WIC food instruments within the established time frame may
lead to the state agency withdrawing its authorization decision.
Store Retailer applicants that fail to meet
any of the enrollment requirements outlined in this section will shall
be denied authorization unless the state agency determines that
inadequate participant access would exist if the authorization were
stores retailers shall contact the
state agency or their assigned agency representative rather than local WIC
agency staff for all questions related to WIC Program participation including, but
not limited to, retail store retailer selection and authorization
requirements and decisions, reimbursement questions, participant's food
instrument prescriptions, and complaints.
stores retailers shall provide at
least 15 calendar days written notice if the retailer desires decides
to terminate its participation in the WIC Program or when if the
retailer ceases operation, changes ownership, or for any other circumstances
that impacts service delivery including , but not limited to, relocations,
renovations, permanent or temporary closures.
C. The state agency shall regularly
communicate policy and procedural changes, training issues, WIC food
instrument processing tips, cashier reminders and alerts affecting retail
stores retailers in an informational newsletter. Annually, a A
newsletter is shall be published annually and sent to all
authorized retail stores retailers to update store retailer
personnel on major program changes. The program posts, if applicable, state
agency shall post approved policy changes, if applicable, on its
external webpage. Authorized stores retailers shall be held
accountable for complying comply with all policy changes
communicated in writing by the state agency.
D. Written correspondence retained in the state agency's
centralized files located in Richmond, Virginia, pertaining to
, but not
limited to, a store's retailer's authorization status,
application documentation, or WIC and food stamps Supplemental
Nutrition Assistance Program compliance history is confidential and is
protected under by federal regulations (7 CFR 246.26). The state
agency shall maintain stores' retailers' compliance history and
background information for at least a three-year period or the contract period,
whichever is longer. For civil judgments and food stamp Supplemental
Nutrition Assistance Program administrative documentation issued against a
specific authorized retailer, the state agency will shall retain
this documentation for six years.
E. In order to utilize the WIC-approved, Internet-based
application for submission of prices,
stores retailers shall give
consent to be monitored by the state agency Virginia Department of
Health or its information technology agency to ensure that this
application is being used for its intended purpose. If such
monitoring reveals possible evidence of unauthorized or criminal activity, this
evidence may be provided to appropriate local, state, or federal
authorities for disciplinary action and prosecution to the fullest extent
permitted by law.
12VAC5-195-300. General requirements and conditions for authorization.
A. Once enrolled, a
store retailer or applicant
shall obtain authorization from the state agency to operate as a
WIC-authorized store from the state agency retailer before
accepting or redeeming food instruments.
B. To obtain and retain authorization
authorized, retailers shall:
food stamp Supplemental Nutrition Assistance
Program authorized at the time of application or reauthorization and remain
in good standing;
Be currently WIC-authorized or eligible for authorization
after meeting a If applicable, fulfill the WIC disqualification
requirement , if applicable;
3. Be in operation as a business at the time of application or within 45 calendar days of application;
Meet Comply with all local, state and federal requirements
statutes, regulations, and rules, including sanitation and building code
regulations; 5. Be necessary as determined by the state agency to ensure
adequate participant access; 6. 5. Submit prices to the WIC Program
using an electronic, Internet-based method at least twice a year or as and
when requested by the state agency; 7. 6. Remain price competitive when compared to
other authorized stores retailers that are located in the same
peer group; 8. 7. Meet the mandatory minimum stocking
requirement at all times and keep such stock immediately available in
the customer shopping area or immediately available onsite; 9. 8. Be located Operate at the store
retailer address indicated in the state agency's application or
authorization record; this address shall be the sole location at which WIC
customers purchase supplemental foods and formulas; 10. 9. Be open for business at least 50 hours per
week; 11. 10. Meet all business integrity criteria as
defined in 7 CFR 246.12; 12. 11. Provide supporting documentation to the
state agency including , but not limited to, annual food sales
information or tax records that will be used to ensure that not no
more than 50% of the store's retailer's total food sales were derived
from WIC sales; 13. 12. Comply with all financial and
corrective actions identified from during prior WIC authorization
authorizations and pay all civil monetary penalties, if applicable; 14. 13. Purchase contract and special formula
from a distributor, supplier, wholesaler, or retail store whose name
retailer who is listed approved by the Virginia WIC
Program as approved to sell formula; and 15. 14. Participate in the WIC Program's direct
deposit (ACH) ACH process used for reimbursement purposes.
Stores Retailers shall not offer
drive-through window or home delivery services for making WIC purchases.
The participant must take physical possession of purchased food and formula
items at the time of transaction when the WIC food instrument is signed.
12VAC5-195-310. Above 50%
A. The state agency shall not authorize any applicant or
store retailer that is likely to derive 50% or more of its annual
food sales from the sale of supplemental foods to WIC participants. Stores
Retailers already authorized by the program whose annual WIC food sales
rise to 50% or more of their total food sales will have their authorization
status terminated. Stores Retailers must submit documentation
that permits the state agency to complete its evaluation and identification of
above 50% vendors retailers. Failure to submit the requested
documentation may lead to the store's retailer's authorization
B. Newly authorized
stores retailers with six
months of redemption history shall have their status reviewed to determine if
they qualify as an above 50% vendor retailer (7 CFR 246.12). If
the state agency's assessment determines the store retailer
qualifies as an above 50% vendor retailer, the store's retailer's
WIC Program authorization status shall be terminated.
12VAC5-195-320. Retailer agreement.
A. The retailer agreement does not constitute a license or a
property right. If an authorized
store retailer wishes to
continue to be authorized beyond the current agreement period, the store
retailer must reapply for authorization. All stores retailers
must be selected under the current selection and authorization criteria being
used by the state agency (7 CFR 246.12).
retail stores and military commissaries retailers
shall use a single uniform retailer agreement. The maximum duration of the
retailer agreement shall not exceed three years. The duration of the retailer
agreement may be for a period that is less than three years, depending upon when
whether a county or location is selected to undergo the regional
authorization and selection process.
C. A fully executed retailer agreement
be signed by both an the authorized store retailer
representative and state agency a WIC program management
representative to be enforceable. The state agency shall provide the store
retailer or its designated contact person a copy of its the
signed retailer agreement or authorization acknowledgement letter once after
all selection and authorization requirements have been met.
A An authorized retailer must have a signed copy
of the retailer agreement must be on file for any store retailer
to be paid for a redeemed WIC food instrument.
E. Revisions, amendments, or modifications to the
provisions of the retailer agreement shall be made in writing. The retailer
agreement shall be automatically amended upon written notice from the
should if federal , or state laws ,
or regulations require amendments.
stores retailers shall keep a copy
of the updated Vendor Retailer Manual, including a copy of the WIC
Approved Food food list, formula flyer, and Cashier
Training Guide, at the store authorized retailer location authorized
to accept WIC food instruments. G. The state agency reserves the right to extend the
current retailer agreement up to six months during the reauthorization
evaluation process. If the state agency uses this option, it shall provide
written notice to authorized stores affected by this administrative decision. H. G. If the state agency takes retailer
appeals an administrative action by the state agency against a
retailer and the retailer appeals and the retailer agreement would
otherwise expire during the appeal process, then the state agency shall
grant an extension of that store's retailer's retailer agreement during
the pendency of the appeal process if the retailer agreement would otherwise
expire during that time. Once an appeal decision has been made, the state
agency will proceed with either terminating the existing agreement or issuing a
12VAC5-195-330. Adequate participant access.
A. The state agency shall ensure that adequate
participant access exists so that eligible participants may redeem the food
instruments issued to them. The state agency uses a retailer limiting criteria
to determine adequate participant access (7 CFR 246.12). The state agency
has the sole authority to define establish adequate participant
access criteria, which are described in 12VAC5-195-370. B. The number of authorized stores or retailer slots available
is based on two factors: 1. Number of WIC participants living in a specific city or
county in which the retail store is physically located; and 2. Population density of the community where the store is
physically located. C. Population density is calculated by identifying the
population that resides in a specific city or county. Population density serves
as a proxy indicator used by the program to project how close together
retailers and participants are located next to each other. Thus densely populated
areas where stores are located closer together require fewer stores to provide
adequate participant access. D. In sparsely populated areas, both population and stores
are dispersed over a wider geographical area that directly impacts participant
access. More sparsely populated areas require more authorized stores to
adequately serve eligible participants. E. Participation is managed and monitored by the WIC
Program on a monthly basis. For this reason the number of available slots for
authorized stores may change frequently. This change will not impact stores
already authorized, but may impact a new store applying for authorization in a
given area. F. The number of authorized retailers or retailer slots
available is calculated by a store to participant ratio, which is higher for
densely populated communities, and lower for sparsely populated counties.
Population density data is updated annually by the state agency and is obtained
from the United States Census Bureau. The WIC Program uses a single population
density indicator to identify which communities have the higher retailer to
participant ratio. G. A specific number of retailer slots will be allocated to
each city/county. A listing of retailer slots available and allocated to each
city and county will not be published and distributed to authorized stores,
since this figure may change frequently.
12VAC5-195-340. Competitive pricing.
stores retailers and applicants
shall submit pricing information to the state agency. Item pricing data is
obtained from authorized stores retailers and applicants from
using prices that have been entered into a WIC-approved Internet-based
B. The state agency
collects shall collect
pricing information for specific food items at least twice a year (7 CFR
246.12). Prices may be collected more frequently from authorized stores
including, but not limited to, the following retailers for reasons including:
store's retailer's prices are determined to
store retailer is designated a high risk
retailer; 3. A competitive pricing analysis is needed in order to
consider an applicant's qualifications; 4. 3. An administrative review is being conducted
as part of a compliance investigation, onsite monitoring visit,
participant access analysis, inventory audit, or post payment analysis; or 5. 4. Other operational considerations that may
occur including , but not limited to, a change in of
contract formula company, a change in of infant food company,
food industry price fluctuations, and manufacturer's price increases for
selected WIC-approved products, such as baby foods, contract formula, and
Stores Retailers and applicants must submit
the highest shelf price for all mandatory foods and formula brands, unless
stated otherwise, that are available and eligible to be sold to participants. For
milk items only, stores retailers must submit the price for their
store WIC designated brand or least expensive brand available.
Prices for optional foods approved for purchase submitted via the
Internet-based application All prices submitted via the Internet-based
application shall be used for calculating the reimbursement
maximums. Retailers must use the approved food list and the minimum stocking
requirement to identify all eligible brands and foods.
Stores Retailers failing to submit their
prices within 14 days of the stated due date stated in the Vendor
Retailer Manual will shall receive one warning letter.
After receiving this letter, stores retailers that fail to
respond within the time period stated in the letter may have their WIC Program
authorization terminated unless the state agency determines that
inadequate participant access would exist if the retailer's authorization
E. Applicants whose prices are determined to be noncompetitive
when compared with other authorized
stores assigned to retailers in
the same peer group shall be denied WIC Program authorization. These applicants
shall not be given a second opportunity to resubmit their prices , unless
the state agency determines that inadequate participant access would exist if
the application was not considered.
stores retailers whose prices are
determined to be noncompetitive when compared with other stores retailers
assigned to the same peer group shall be given one opportunity to resubmit
their prices. After analyzing the prices submitted from this second submission,
the state agency shall determine if the store retailer qualifies
to remain authorized. The state agency shall terminate the store's retailer's
authorization if its prices are noncompetitive unless the state agency
determines that inadequate participant access would exist if the
retailer's authorization were terminated.
The state agency uses nine business economic areas
(BEAs) to initially define peer groups based on location and economic variations.
For more densely populated BEAs, a second criterion used to further define peer
groups is the number of unique participants served (7 CFR 246.12). Each
authorized store or applicant is assigned to a single peer group. The
applicant's physical retailer address shall be classified as being located
either in an urban or rural location based on the county or city where the
retailer is located. Retailer applicants located outside of Virginia shall be
assigned to the rural category.
1The state agency uses the Isserman model for determining what cities and counties are considered urban and rural settings. This model was created for the United States Department of Agriculture and was published in "In the National Interest: Defining Rural and Urban Correctly in Public Policy" (International Regional Science Review, 28, 4:465 - 499 (2005))
Authorized retailers are assigned to a peer group based on their designation of rural or urban and the number of cash registers located in the retailer. Peer groups are defined as follows:
Special formula contractor
One to four cash registers
Five to nine cash registers
Rural and under $100,000 in annual WIC sales
Five to nine cash registers
Rural and over $100,000 in annual WIC sales
10 and above cash registers
One to four cash registers
Five to nine cash registers
Urban and under $100,000 in annual WIC sales
Five to nine cash registers
Urban and over $100,000 in annual WIC sales
10 and above cash registers
H. For newly authorized
stores retailers and
applicants the peer group designation assigned during the first three
months is shall be determined by the first criterion only;
specifically the store's BEA default location retailer's location and
number of cash registers. This default location, if applicable, is the
peer group that services 0-100 unique participants. Authorized stores' peer
group designation may change, based upon increases or decreases in the monthly
average number of unique WIC participants being served by the store. For
the peer group designation of newly authorized retailers that have five to nine
cash registers, the state agency shall assume the retailer had less than
$100,000 in annual WIC sales.
I. All retailers that have five to nine cash registers shall have their WIC sales data calculated by the state agency every six months to determine if the retailer's annual WIC sales are projected to be under or over $100,000. If the retailer's WIC sales have changed, then the retailer's assigned peer group shall change to reflect its redemption status.
J. Retailers that increase or decrease their number of cash registers must notify the state agency in writing within 15 calendar days. An onsite visit may be conducted by the state agency to confirm the number of operational cash registers. Retailers that knowingly misrepresent their number of cash registers may have their authorization status terminated unless the state agency determines that inadequate participant access would exist if the retailer's authorization were terminated.
12VAC5-195-350. Price verification.
stores retailers and applicants
must submit prices for all mandatory foods and formulas as defined by the state
agency. Once prices have been submitted to the WIC Program, they must remain valid
in effect for at least a 30-day period and are subject to random onsite
verification by the state agency. Posted prices that are significantly above
what was higher than the prices submitted to the state agency may
affect the store's retailer's or applicant's authorization
store retailer or applicant's submitted
price shall be compared by the state agency to other authorized stores
assigned to retailer in the same peer group in order to
determine if the prices submitted are competitive. Prices shall be submitted
and validated as competitive for specific food items and formulas eligible
for payment to the authorized store location as specified in the
stores retailers and applicants
shall have a pricing point value that is 40 or higher in order to remain
eligible for program authorization.
Price Comparison Range
Pricing Point Value
Peer Group Average, minus 10% or more
Peer Group Average, minus 5.1 - 9.9%
More Competitive Pricing
Peer Group Pricing Average, plus or minus 5.0%
Peer Group Pricing Average, plus 5.1
Peer Group Pricing Average, plus
stores retailers whose prices are
identified as noncompetitive when compared with other authorized stores assigned
to retailers in the same peer group within a BEA may have
their WIC Program authorization terminated , unless the state agency
determines that inadequate participant access would exist if the
retailer's authorization were terminated.
stores retailers that fail to
submit a price for optional food and formula items may have redeemed food
instruments selected as ineligible for payment as part of the postpayment
review process. These improperly redeemed food instruments may be identified as
a vendor retailer claim and be subject to repayment of the full
amount paid for all of the items prescribed on the food instrument.
12VAC5-195-360. Selection decisions.
All retailers and applicants will compete equally for
available slots located within a specific city/county or zip code, if
applicable. The state agency reviews the qualifications of authorized stores
and applicants located in a specific BEA or city/county within a BEA to
make authorization selection decisions. Retail stores' and applicants'
mandatory women and infant food and formula items used for pricing analysis
purposes must qualify under the price competitive category of 40 or higher in
order to be selected for authorization (7 CFR 246.12). The state agency shall rank all stores that have a pricing
point value of 40 or higher in ascending order, or lowest price to highest
price. The stores that have the lowest total prices are considered the best
qualified stores. Applicant's and store's ranking will be used to select
applicants and stores for all available slots located within a specific BEA or
city/county within a BEA.
Every three years, currently authorized retailers shall reapply for WIC program authorization. Retailers must meet all general requirements for authorization as established in 12VAC5-195-300.
When multiple stores have equal rankings and there are
not enough slots to authorize all such stores, rankings will be further
differentiated based on the following criteria in order of their application: 1. When equal rankings occur, stores with the lowest prices
for selective special formulas that are eligible to be sold to WIC participants
will be offered any available slots. 2. If rankings continue to be equal, the state agency shall
offer available slots to the authorized store or applicant with the highest
number of unique participants who reside in the zip code where the store is
located. 3. If rankings continue to be equal, the state agency shall
offer available slots to the authorized store or applicant with the highest
square footage, excluding storage space, to determine which stores will be
offered available slots. 4. If rankings continue to be equal and the stores or
applicants are owned by the same corporate entity, then the corporate
representative will be allowed to decide which corporate-sponsored store shall
be offered the available slot. 5. If rankings continue to be equal and the stores or
applicants are not owned by the same corporate entity, then the store or
applicant that has the highest food stamp sales for the previous six months
will be offered the available slot.
The state agency shall review the qualifications of retailer applicants before making authorization selection decisions. Mandatory women and infant food and formula items sold at authorized retailers and retailer applicants shall be used for pricing analysis purposes. Authorized retailers and applicants must qualify under the price competitive category of 40 or higher in order to be selected for authorization.
C. If a
retail store retailer or applicant is
not competitively selected for program authorization, then the store
retailer may not apply again no sooner than during the
six months after being denied authorization. Any exception to the six-month
requirement shall be determined at the discretion of the state WIC director.
The state WIC director or designee may grant exceptions to the six month
requirement if inadequate participation would exist if the retailer's
authorization was not considered. D. If a newly opened store is considered to be a best
qualified store and is offered a slot, then the previously authorized store in
that slot will be offered an extension to its retailer agreement to remain
authorized for one year from the start of the new authorization period. E. D. The state agency shall send all authorized
stores retailers and applicants a written notice pertaining to
of their selection status. All stores retailers and
applicants being denied WIC Program authorization shall also receive
information that explains their right to appeal the state agency's
administrative decision. F. E. The state agency does shall
not maintain an applicant waiting list.
12VAC5-195-370. Authorization exception decisions.
The state agency may adjust the number of retail stores
authorized to ensure that adequate participant access exists. Only the state
agency shall determine what constitutes adequate participant access. The
state agency may make authorization exceptions to ensure that adequate access
exists based on one or several of at least one of the following
1. Provide reasonable access;
2. Provide safe access due to a physical barrier or impediment
, but not limited to, a multilane highway, river, bridge;
physical terrain (i.e., mountains);
3. Provide a best pricing or highly competitive alternative
retailer location to eligible participants to purchase WIC-approved food
foods, when compared to other available stores retailers
located within a given city and/or county;
4. Promote competition in a trade area previously identified as
not having a price competitive authorized
retail store retailer
5. Improve customer service or remove an existing service barrier, i.e., language, cultural;
6. Improve WIC customer access
due to the fact that because
the store retailer is within a safe and reasonable walking
distance and is located in close proximity to one or several low income housing
units where WIC participants reside;
Provide supporting documentation that the store's The
retailer's draw area is broader than the store's retailer's
immediate trade area. The store's retailer's draw area includes
cities and counties that cross geographical boundaries; or
Provide supporting documentation that the specific BEA or
city/county within a BEA in which the store is located is experiencing, or
based on recognized projected economic indicators, is likely to experience
disproportionate economic hardship. Expand access to WIC eligible foods
that are purchased by a specific ethnic population.
12VAC5-195-390. Approved food list.
A. A copy of the current Virginia WIC Program's Approved Food
(effective January 1, 2007) and formula flyer must be stored
at each cash register where WIC transactions are handled. A copy of the
approved food list and formula flyer must also be stored in the Vendor
Retailer Manual that shall be kept onsite at the authorized store
B. The approved food list
is shall be used in
conjunction with the WIC food instrument to identify foods that are eligible
for purchase by WIC participants using WIC food instruments. The
food instrument may state specific manufacturers or brands that must be
purchased by program participants that are not covered by the general
description used in the approved food list that must be purchased by program
C. The formula flyer shall be used in conjunction with the WIC food instrument to identify formula and medical foods that are eligible for purchase using WIC food instruments. The food instrument shall state the specific manufacturer, type, and quantity of formula that must be purchased by program participants.
C. D. Authorized retailers shall sell
WIC-designated brands for food categories identified in the approved food list.
Authorized retailers shall use shelf labels approved by the state agency to
identify the WIC-designated brands that they select and declare are
declared using the state agency's Internet-based application.
12VAC5-195-400. Authorization stamp assignment and usage.
A. The state agency
assigns shall assign a
unique stamp number to stores that are authorized and eligible to receive
reimbursement for deposited food instruments each authorized retailer.
The store's retailer's authorization number is shall be
imprinted on a rubber stamp, which shall be used on every food instrument
deposited by the authorized store retailer location. Failure by
the retail store retailer to use the issued authorization stamp
may result in denied payment being denied for redeemed WIC food
instruments or a store's disqualification, if a pattern of
noncompliance is documented, the termination of a retailer's authorization
unless the state agency determines that inadequate participant access would
exist if the authorization were terminated.
stores retailers must obtain any
needed replacement stamps from the stamp supplier approved by the state agency.
The state agency will shall provide a maximum of three stamps to
an authorized store retailer per contract period at no charge.
Failure to purchase an approved stamp from the designated stamp supplier may
lead to deposited food instruments being rejected and returned unpaid by the
C. If a stamp overlay process is requested by an authorized retailer, the state agency may waive the requirement to use a rubber stamp on deposited food instruments. The stamp overlay process shall result in the assignment of a unique identification number that must be tested and approved by all affected parties. Retailers must submit a written request to the state agency at least 60 days prior to implementing the stamp overlay. If the request is approved, the state agency shall send written approval to the corporate office of the retailer requesting the stamp overlay. Failure to obtain written approval may lead to food instruments being returned unpaid by the banking contractor.
12VAC5-195-410. Change of ownership.
retail stores retailers shall
provide the state agency with advance written notice of at least 15
calendar days prior to any change of ownership as outlined in 7 CFR 246.12.
B. A change of ownership occurs
for reasons including, but
not limited to, when the principal owner, or owners, or
corporate officers of the business or corporation have are
legally or permanently changed.
store's retailer's authorization will
become null and void shall be terminated by the state agency upon a
change of ownership. The rights and obligations established under a signed
retailer's agreement with the WIC Program may not be transferred or assigned by
the retail store retailer or corporate owner to any other third
D. The new owner or
store retailer manager of
the business/corporation business or corporation shall apply for
WIC Program authorization and submit their his qualifications and
a new application for evaluation based on the most current retailer selection and
E. The state agency shall terminate the authorization status
store retailer that has undergone a change of ownership
and failed to notify the state agency in accordance with the requirements
outlined in the signed Retailer Agreement , effective July 1, 2008.
12VAC5-195-420. Change of location.
A. Authorized WIC
retail stores retailers shall
provide the state agency with written notice of a store's retailer's
relocation plans within 15 calendar days prior to scheduled move date. Failure
to notify the state agency in writing of such actions may result in the state
agency taking administrative action, including terminating for cause the
store's retailer's program authorization, unless the
state agency determines that inadequate participant access would exist if
the authorization were terminated.
B. Relocation of a
retail store retailer is
store's retailer's physical location
changes within the same geographical area or county/city and there is no change
in ownership or pricing structure. The store meets retailer must meet
one of the following criteria:
store retailer location is two miles or
less from the former location; or
b. Majority of management and
personnel will move to the new location. If the new location is greater than
two miles, the WIC Program will evaluate on a case-by-case basis to determine
whether the new location is an alternative location and qualifies as a
relocation versus a new store retailer authorization;
store will retailer shall be open for
business within 15 calendar days or less after moving to a different physical
3. The former
store retailer location will
under the existing owner shall be permanently closed for business.
C. The state agency shall ensure that the new location still
meets the selection criteria as outlined in 12VAC5-195-340 and 12VAC5-195-360
including being price competitive. Failure to meet all selection criteria may
lead to the
store's retailer's authorization being terminated ,
unless the state agency determines that inadequate participant access exists
would exist if the authorization were terminated. Authorized stores
retailers that meet all selection criteria will be permitted by the
state agency to continue their authorization without experiencing any
disruption in their authorization status. The state agency must assign a new
WIC authorization ID to the new store retailer location if a new food
stamp Supplemental Nutrition Assistance Program ID has been issued
to the store retailer.
12VAC5-195-430. Change due to closure.
retail stores retailers shall give
the state agency written notice of a store's retailer's permanent
or temporary closure within 15 calendar days before the actual closing date. A temporary
closure is defined as a store retailer location being closed to
the public for more than 15 consecutive calendar days. Stores Retailers
closed to the public for any reason greater than 30 consecutive calendar days
will have their WIC Program authorization terminated.
B. Failure to notify the state agency in writing of either
permanent or temporary closure may result in the state agency taking
administrative action, including terminating for cause the
WIC authorization status.
12VAC5-195-440. Voluntary withdrawal.
retail stores retailers shall give
the state agency at least 15 calendar days written notice if the store retailer
owner or manager decides to discontinue participation in the Virginia WIC
A. The state agency shall maintain a system of receiving,
documenting and investigating all complaints submitted by
retail stores retailers,
participants, proxies, caretakers, parents, and the general public. From
submitted complaints, the On the basis of a written complaint, the
state agency may issue a written warning to take action against
participants and retail stores retailers that abuse or misuse
program benefits as outlined in the State Plan and Vendor Retailer
Manual (effective August 1, 2008).
B. The state agency shall forward complaints of both alleged discrimination and civil rights violations to the Secretary of Agriculture as required by federal regulations.
12VAC5-195-460. Conflict of interest.
retail store retailer management
shall seek to ensure that no conflict of interest exists between any store
retailer personnel employed by the retailer and any local, state, or
federal WIC agency. This includes, but may not be limited to, store The
prohibition against conflict of interest applies to retailer
employees or spouses of store owners, retailer owners, or relatives
of retail employees or owners who are also employees of a local, state, or federal
WIC agency. B. Retail stores shall identify and report any member of
the store's ownership, management, or operations staff who are directly
associated with the WIC Program to the state agency. To ensure that all
potential conflicts of interest are identified and reported, the retail store
must complete and submit a potential conflict of interest reporting form to the
state agency upon request or as deemed necessary by the state agency. Failure
by the store to submit this form in the time frame designated by the state
agency may result in the store's authorization status being terminated unless
inadequate participant access would exist. C. B. WIC participants, caretakers, or proxies
who are employed at an authorized retail store may retailer shall
not accept or transact food instruments issued to themselves or a member of
their immediate family relatives as a function of their duties at
the retail location. Authorized retail store retailer management
shall ensure all store retailer employees adhere to this
C. Authorized retailer management shall notify the state agency in writing when a conflict of interest exists.
D. When an employee of an authorized retailer or an employee's relative is employed by a local, state, or federal WIC agency, the employee shall:
1. Notify retailer ownership or management of his or his relative's employment;
2. Not show favoritism towards any authorized retailer including the retailer where he is employed.
E. Employees of an authorized retailer shall not in their professional capacity provide any gratuities, including cash, food, coupons, or gift cards, to employees of local, state, or federal WIC agencies.
F. Authorized retailer management shall seek to ensure its employees comply with the conflict of interest requirements listed in this section and review them with retailer personnel annually.
G. Additional conflict of interest regulations may be found in 12VAC5-195-230.
H. This section is not meant to replace or abrogate the Virginia State and Local Government Conflict of Interests Act, Chapter 31 (§ 2.2-3100 et seq.) of Title 2.2 of the Code of Virginia.
stores retailers may not provide
incentives to local agency staff or participants to entice or promote shopping
at a specific store retailer location, unless approved in writing
by the state agency.
12VAC5-195-480. Participant confidentiality.
A. Participant information shall remain confidential to ensure compliance with federal regulations and to protect the right to privacy of WIC participants (7 CFR 246.26).
B. Confidentiality requirements apply to information provided
by a participant and that is based on direct observation by
personnel. Confidentiality requirements include, but are not limited to:
1. The prohibition of retailers from collecting personal information from WIC participants;
2. Making personal contacts with WIC participants after the WIC transaction has occurred; or
3. Sharing information on participant identification with third parties. Third parties do not include WIC Program state, local and federal agency representatives who have a legitimate business interest in the services provided to participants.
12VAC5-195-490. Retailer confidentiality.
A. Background and pricing information collected by the state
agency related to evaluating the authorization status of a
or collected from food instruments redeemed by an authorized store is retailer
are confidential (7 CFR 246.26) and can may be
released only to: as provided in 7 CFR 246.26. 1. The store retailer itself; 2. The parent corporation; or 3. Other governmental agencies responsible for ensuring
program integrity, i.e., Food Stamp SNAP Program, Office of Inspector
General, United States Department of Agriculture.
B. In accordance with federal regulations, 7 CFR 246.26,
vendor retailer information is any information about
a vendor retailer, whether it is obtained from the vendor retailer
or another source, that individually identifies the vendor retailer,
except for the following: store retailer name, physical mailing
address, telephone number, website, email address, store retailer
type, or and authorization status. All other vendor retailer
specific information is restricted from disclosure to the public by the
C. Upon receiving a written request from a
or their its parent corporation, the state agency shall only
release background and pricing information that has been provided by or that
pertains to the requestor. Under no circumstances will may the
state agency release confidential information about the redemption revenue paid
to stores retailers owned by other corporations.
stores' retailers' peer group
designation is confidential and is restricted from disclosure to persons and
entities not directly associated with the authorized store retailer
E. The state agency's inadequate participant access results
completed for administrative purposes are considered confidential and not
subject to review by the
retail store retailer or its agent,
since this profile contains information protected by WIC Program regulations.
Upon request, a copy of this work document can may be released
with any all confidential information removed. This document in
its entirety will shall be made available to appropriate
governmental bodies that are responsible to ensure that the state agency has
fully complied with any mandated WIC Program requirements.
12VAC5-195-500. Sales tax and coupons.
retail stores retailers shall
ensure that no sales tax is charged to the WIC Program. Store Retailer
coupons, manufacturer coupons and loyalty card discounts may be used for
WIC-approved purchases. When a WIC participant uses a coupon or discount card
in conjunction with a food instrument and an item is provided free, then sales
tax shall be collected directly from the participant.
B. No sales tax can be applied to the printed value of cash value food benefits. Any tax associated with the dollar amount purchased above the printed value of the cash value food benefit must be collected directly from the participant.
stores retailers shall not:
1. Initiate behavior that may be deemed aggressive or
intimidating by a reasonable person in approaching potential WIC participants in
order to promote that participant's shop at a specific
2. Use any state or local agency facilities and property to
post or distribute materials advertising their
B. If the state agency documents that an authorized
retailer violates either of these prohibitions, then the store's retailer's
authorization may be subject to termination by the program.
stores retailers shall not use any
advertisement practices or procedures that may give the public or participants
the impression that a special or exclusive business relationship exists between
the state agency and any authorized store retailer.
D. It is the
store retailer owner's or
designated agent's responsibility to ensure all employees understand and adhere
to all prohibitions and restrictions related to solicitation.
12VAC5-195-520. Training and education.
A. Training of applicants or authorized
may be conducted by state agency staff. The state agency may also delegate full
authority to trained individuals who have been certified as corporate trainers.
Certified corporate trainers shall attend at least one mandatory WIC
training class annually in order to remain certified.
B. The state agency shall provide mandatory annual training
for previously authorized
stores retailers. The annual training
requirement may be met by the previously authorized retailers:
1. Submitting a newsletter training acknowledgement form;
2. Successfully completing an agency-sponsored Internet training course offered by the WIC Program; or
3. Attending an approved instructor-led, interactive training class.
C. Reauthorization training shall be required for previously
stores retailers that have been selected under a new
stores can retailers may request
remedial training at any time by contacting the state agency.
E. All authorized
stores retailers are required
to have at least one store representative participate in annual training
provided by either the state agency or a certified corporate trainer (7 CFR
F. Failure of an authorized
store retailer to
meet any the mandatory training requirement requirements
shall result in sanctions being imposed and the possible termination of the store's
retailer's program authorization, unless the state agency determines
that inadequate participant access would exist if the authorization were
12VAC5-195-530. Use of acronym and logo.
stores retailers shall post a
state-issued "WIC Accepted Here" window decal in the store's retailer's
front entrance or in a conspicuously visible location that identifies to the
general public that the store retailer location participates in
the WIC Program. Authorized stores retailers may use alternative
signage if approved by the state agency prior to being used.
Retail stores Retailers, food manufacturers,
distributors and suppliers shall receive written approval from the state agency
prior to producing or distributing window decals, channel strips, shelf
talkers, or other promotional items that use either the WIC acronym or logo. Stores
Retailers that elect to use point-of-sale channel strips, shelf labels,
or other promotional materials for a specific food category must ensure that
all eligible items are consistently promoted as WIC approved. Stores Retailers
are prohibited from promoting a specific manufacturer's product over another
eligible WIC-approved product within the same food category (USDA Memo SFP
Retail stores Retailers or applicants shall
not use either the acronym "WIC," "W.I.C." or the WIC logo,
including close facsimiles thereof, in total or in part, either in their
official name in which the store retailer is registered or in the
name under which it does business, if different (USDA Memo SFP 09-020).
Retail stores Retailers, food manufacturers,
distributors and suppliers shall not use the WIC acronym or logo in the
packaging of their products. Retail stores Retailers, food
manufacturers, distributors and suppliers shall receive written approval from
the state agency before using either the WIC acronym or logo for any business
or public relations purpose (USDA Memo SFP 09-020).
Vendor Retailer manual for the
Virginia WIC Program. All authorized stores must keep a current copy of the
Vendor Manual for the Virginia WIC Program, Cashier Training Guide, and an
Approved Food List at the store location authorized to participate in the
program. A current copy of the Virginia Approved Food List must be kept at each
cash register used to process WIC transactions. Periodically, individual
sections of the Vendor Retailer Manual may be updated to reflect
federally mandated regulatory changes and other WIC Program requirements. The
most current version of the Vendor Retailer Manual is located on
the state agency's website, which stores retailers must access to
obtain updated copies of procedures and forms.
12VAC5-195-550. High risk
A. The state agency
classifies shall classify
each authorized store retailer as either high risk, probationary,
or nonhigh risk. In accordance with federal regulations (7 CFR 246.12), high
risk stores retailers have demonstrated from prior authorization
history a pattern of noncompliance with documented vendor retailer
management policies or violations documented from covert, undercover buys. The
state agency may also change a store's retailer's designation to
high risk based upon noncompliance documented from onsite monitoring visits or
inventory audits. All of these overt and covert visits shall be
conducted during hours the retailer is open to the general public, including
weekdays, weekends, and holidays.
The state agency may select
stores retailers for
compliance monitoring based on statistical trends documented from a retail
store's retailers' redemption pattern patterns. A store's
retailer's designation being will only be changed to high
risk will only occur as result of documented violations identified from
by compliance investigations or other types of objective monitoring
practices used by the state agency. Stores Retailers shall also
be changed to high risk if:
store retailer has been the subject of a
compliance investigation by the state agency and has been cited for five or
more chargeable violations within 12 consecutive months;
store retailer has received a Food
Stamp Program Supplemental Nutrition Assistance Program civil
monetary penalty or WIC program civil monetary penalty and is being retained in
lieu of disqualification; or
store's retailer's authorization status is
under consideration for possible disqualification during the administrative
review or appeal process .; or
4. The retailer has been the subject of an inventory audit and the documented results identify a significant discrepancy between the retailer's inventory, purchasing records, and WIC redemption sales.
stores retailers classified as high risk will
shall receive written notification from the state WIC Program to advise
them of the store's retailer's status change prior to the change
becoming effective. Stores Retailers shall be designated high
risk for a minimum one-year period and will have their status periodically
evaluated by the state agency.
B. If a retailer is retained in lieu of disqualification or
its status is changed to high risk, a written assurance letter must be
submitted to the state agency within 30 calendar days after being notified of
this requirement. The retailer's assurance letter must
steps detailing detail the actions the store retailer
will take to improve its performance.
stores retailers designated as
high risk will shall be selected for more frequent onsite and
covert monitoring investigations.
12VAC5-195-560. Nonhigh risk
stores retailers that have
participated in the WIC Program for more than one continuous year and have
demonstrated an acceptable level of compliance in meeting program requirements are
considered nonhigh risk stores retailers.
stores retailers with less than
one year of continuous program authorization shall be designated a probationary
retailer. During a probationary store's retailer's first year it
will be more frequently monitored through both unannounced and onsite
monitoring visits, as well as being selected for at least one compliance
12VAC5-195-580. Performance and administrative monitoring.
A. All applicants must successfully pass an unannounced
stocking visit prior to being authorized. Applicants
receive a written letter from the state agency advising them the store that
their retailer has been selected for further authorization consideration.
The applicant will shall receive a copy of the minimum stocking
requirement and the letter sent to the store will retailer shall
identify the consequences associated with of failing to meet this
B. The state agency
monitors shall monitor
authorized store's retailers' performance throughout the contract
period in order to ensure the best qualified stores retailers are
authorized. The type and level of monitoring conducted by the state agency depends
shall depend upon the store's retailer's authorization
status. Trained local agency staff, state agency staff, and other specially
trained contractors may conduct onsite visits to ensure compliance with basic
stocking requirements and administrative program requirements. Stores
Retailers designated as high volume retailers, high risk
retailers , and probationary stores retailers are more
likely to be selected for unannounced monitoring visits by the WIC Program.
stores retailers that fail to
consistently meet comply with any of the general requirements and
conditions for authorization may be terminated. Specific areas the The
state agency monitors include, but are not limited to shall monitor:
1. Number of paid and rejected food instruments;
2. Prices charged for WIC-approved foods and formula;
3. Level of compliance
in following with program
4. Use of approved wholesalers and suppliers
purchasing WIC-approved foods and formulas .; and
5. Compliance with retaining purchasing records for WIC-approved foods and formulas.
D. The state agency shall establish and communicate the
minimum stocking requirement to all authorized
and applicants the minimum stocking requirement.
E. Each federal fiscal year, a sample of authorized
retailers shall be selected for one or more unannounced onsite
State agency personnel Agency representatives
may conduct an unannounced monitoring visit to ensure that authorized stores
retailers or applicants meet all program requirements. Authorized stores
retailers and applicants shall have available onsite the minimum
stocking requirement available onsite at all times as established by
the state agency. The required specific foods, contract formulas,
and administrative procedures associated with meeting this requirement
are outlined in the Minimum Stocking Requirement , which is included in
the Vendor Retailer Manual.
G. Agency representatives shall conduct unannounced monitoring visits during hours the retailer is open to the public. Authorized retailers must submit any changes to their normal hours of operation to the state agency in writing.
G. H. Authorized stores retailers
with more than one year of continuous participation in the program may request
in writing to the state agency that a waiver be granted for one or more items
that are part of the minimum stocking requirement. The state agency shall
provide a written decision to regarding the store's retailer's
waiver request within 30 calendar days after receipt. The waiver to the minimum
stocking requirement for a required item shall expire upon the presentation to
the store retailer, on behalf of a participant, of a WIC food
instrument for the purchase of that required food item. The authorized store
retailer shall provide the food item within 48 hours, excluding weekends
and holidays, after presentation of the WIC food instrument. H. I. The state agency may conduct other types
of unannounced onsite monitoring visits to a retail store's retailer's
location including , but not limited to, random, price verification, high
volume, formula audits, purchased formula records review, and high
risk. I. J. During the an unannounced
onsite monitoring visit, the state agency representative may perform, but
not be limited, to the following:
1. Observe and document the level of compliance with general program requirements;
2. Validate if the minimum stocking requirement has been met;
3. Collect and confirm prices submitted by
4. Confirm prices are posted on or in close proximity to WIC-approved foods;
5. Review purchase or invoice records;
6. Conduct formula inventory analysis;
7. Educate the retailer about program changes;
8. Provide educational materials and supplies;
9. Provide technical consultation;
10. Confirm WIC-approved shelf labels are being used correctly
correctly identify WIC-designated brands; and
11. Confirm the number of reported cash registers.
J. K. During the unannounced onsite monitoring
visits, store retailer management may receive the following:
1. Answers to technical or procedural questions;
2. Updated program information;
3. Additional training materials and supplies;
4. Opportunity to correct documented deficiencies, if needed;
5. Opportunity to provide shelf prices of WIC-approved items, if applicable; and
6. Opportunity to confirm results documented by the state agency representative during the monitoring visit.
K. L. The results from these onsite visits are
documented and kept on file at the Richmond, Virginia, state agency
office in Richmond, Virginia. L. M. Each federal fiscal year, a sample of
authorized stores retailers shall be selected for one or more
announced onsite formula monitoring visits. The state agency shall ensure that
authorized stores retailers sell formulas that have been
purchased from a WIC-approved supplier, distributor, wholesaler, or an
authorized resource. A listing of WIC-approved suppliers, distributors,
wholesalers, and authorized resources is located on the state agency's website.
This outcome is accomplished by state State agency personnel reviewing
shall review formula purchasing records and invoices, comparing compare
formula redemption data from WIC sales, and completing complete
a pre- prephysical and postphysical inventory of formula
available at the store retailer location during a specific
analysis period. Stores Retailers whose purchase records do not
support the quantity of WIC sales volume for a selective formula item based
upon redeemed food instruments may be issued sanctions, fined, or disqualified
from the WIC Program. The results from a formula monitoring visit are shall
be documented and a written assessment is shall be sent to
the store retailer once the state agency has completed its analysis.
M. N. Authorized stores retailers
that do not remain price competitive, fail to maintain the minimum
stocking requirement, or fail to adhere to the retailer agreement may be
fined or have their authorization terminated unless the state agency determines
that inadequate participant access exists would exist if the
authorization were terminated. Depending upon the service delivery impact,
the state agency may temporarily waive terminating a store retailer
that fails to comply with any of these requirements until an alternative store
retailer located in the same area can be authorized. The state agency will
evaluate and shall document the reasons for making any authorization
12VAC5-195-590. Reimbursement and payments.
A. The state agency shall use a prepayment edit process to screen all deposited food instruments. For each processed food instrument, the state agency shall either:
1. Pay as submitted;
2. Make a price adjustment, if applicable; or
3. Deny payment of the deposited food instrument.
B. The state agency's reimbursement responsibilities in making payments against deposited and undeposited food instruments include, but are not limited to:
1. Ensuring payments are made to authorized
that have a signed retailer agreement with the Virginia WIC Program.
Unauthorized stores retailers will not be paid for any mistakenly
accepted and deposited food instruments;
2. Ensuring the maximum reimbursement levels used by its banking contractor, based upon peer groups, are reasonable for the food and formula items prescribed for purchase by participants;
3. Reconsidering for payment WIC food instruments not paid or partially paid provided the food instruments are submitted to the state agency within 50 calendar days of the first date printed on the food instrument;
4. Making price adjustments to the reimbursement amount paid to
retail stores retailers in order to ensure individual store's
retailer's reimbursement levels remain eligible for authorization, based
upon competitive prices charged by similar stores retailers;
5. Collecting bank account and routing numbers from applicants
stores retailers in order to process direct
deposit ACH payments using an Automated Clearinghouse (ACH);
6. Ensuring prompt ACH credits are made to the retailer's bank account when appropriate;
7. Collecting retailer's prices using an electronic, Internet-based application;
8. Identifying retailers whose prices are noncompetitive and take administrative actions including possible termination of the retailer's authorization;
9. Complying with all federal regulations and guidelines that require administrative approval by USDA prior to making payments, as applicable;
10. Providing written communications to all authorized
retailers containing the procedures used by the program to pay or deny
payments for all deposited food instruments; and
11. Recouping overpayments due to banking or procedural errors,
if applicable, from authorized
stores retailers must deposit food
instruments within 14 calendar days of the last date printed on the food
D. Food instruments or image replacement documents (IRDs)
rejected for payment due to "unreadable
stamp" or "no vendor authorization stamp" error
messages must be corrected and redeposited within 30 calendar days of the last
date printed on the food instrument.
E. All food instruments or IRDs rejected for payment or
undeposited food instruments require WIC Program review for exception payment
consideration and must be submitted by the authorized
to the state agency. The state agency reserves the right to deny a submitted
request for payment depending on the explanation provided by the store retailer
or bank of first deposit. Approved exception payments will only be made to an
authorized retail store retailer.
Stores Retailers must submit their undeposited
or rejected food instruments or IRDs and justifications to the state agency
within 30 calendar days of the last date printed on the food instrument. A store
retailer must also simultaneously submit a written request and
justification for payments on undeposited or rejected food instruments or IRDs.
2. Undeposited or rejected food instruments or IRDs sent to the state agency that are greater than 30 calendar days from the last date printed on the food instrument may not be eligible for payment and may require USDA approval.
3. Food instruments or IRDs rejected for payment due to a processing error that originates either at the federal reserve or bank of first deposit may be considered for an exception payment. The food instruments or IRDs must be submitted to the state agency within 120 calendar days from the first date to spend printed on the food instrument. A bank representative must submit a written request with the unpaid food instruments or IRDs.
F. A maximum allowable reimbursement amount for each peer
group and food item combination is established using pricing data (7 CFR
246.12). Each food item combination is identified by a unique food instrument
type identifier. More than 4,000 unique food combinations exist with different
reimbursement maximum amounts. Authorized
stores retailers that
submit prices determined to be noncompetitive will not have their prices used
when the state agency computes the maximum allowable reimbursement amount used
for making price adjustments.
Stores Retailers may only get reimbursed for
mandatory and optional foods and formula products they have submitted prices
for prior to redeeming food instruments for those products. Redeemed food
instruments may be subject to repayment as a vendor retailer
claim if they include optional items for which a store retailer
has failed to submit prices. Stores Retailers must ensure that
the most current shelf prices have been submitted to the WIC Program for all
mandatory items. Failure to submit prices or providing inaccurate prices for
any mandatory food items may lead to a store's retailer's
authorization being terminated unless inadequate participant access would
H. Contract and special formulas where pricing information is
collected via the Internet-based application by the state agency are eligible
for payment to authorized
stores. Prices are purposely not collected by
the state agency for formulas that should not be redeemed at retail stores
retailers. Food instruments redeemed for these types of special formulas
are subject to repayment by the store retailer.
I. A maximum reimbursement amount will be established for cash
value food benefits used by participants to purchase fruits and vegetables. The
amount written on the food instrument must not exceed the maximum reimbursement
amount printed on it. For cash value food benefits only, the
must offer one of the following options to the participant if the total dollar
amount being purchased exceeds the printed cash value:
1. The participant shall be allowed to pay the amount over the printed cash value; or
2. The participant shall be allowed to reduce the quantity of eligible fruits and vegetables being purchased.
Stores Retailers must notify the state agency in
writing which of these options they provide to WIC participants.
J. The food instrument type/peer group pricing maximum amount
may be adjusted monthly by the state agency, depending upon external factors
including, but not limited to, wholesale price increases. The reimbursement maximum
used for the various food instrument types peer group combinations are not
distributed to authorized
stores retailers prior to being used by
the banking contractor.
K. Food instruments or IRDs that are ineligible for payment
and are rejected will be returned to the
depository bank by the state agency's banking contractor. These returned food
instruments will be stamped with a descriptive error message.
L. The state agency may make payment exceptions for food
instruments that would normally be denied payment by its banking services
contractor. The authorized
store retailer shall submit all such
requests in writing, including a justification, within 30 calendar days from
the last date printed on the food instrument. The state agency will send a
payment disposition decision to the requestor within 30 calendar days, after
M. The state agency shall use a postpayment review process to
prospectively evaluate the reimbursement amount paid against redeemed food
instruments in order to identify excessive or improperly redeemed food
instruments in accordance with federal regulations (7 CFR 246.12). From the
postpayment review process, the state agency may determine that one or more
payments already made to a
retail store retailer were ineligible
for payment as a result of a store retailer failing to submit
pricing data for the purchased item or items. The state agency reserves the
right to bill and recoup payments of these ineligible payments, which will be
referred to as a vendor retailer claim (7 CFR 246.12). The state
agency shall not bill an authorized store retailer if the vendor
retailer claim amount is less than $10.
retail store retailer that is not
authorized to participate in the Virginia WIC Program that accepts a food instrument
will not be reimbursed for any food instruments redeemed by a WIC participant.
store retailer must submit a direct deposit
ACH form to the state agency that identifies any bank changes to its routing or
account number. A direct deposit ACH form must be submitted at least 14 days
prior to the change effective date. If the state agency's banking contractor
identifies that the store's retailer's bank account or routing
number is not valid, then the store retailer will receive one
written notice from the state agency. Failure by the store retailer
to resolve any reported discrepancies within 30 days after a written notice has
been sent by the state agency may lead to the store retailer
being ineligible to receive payments for rejected FIs food instruments.
Retail stores Retailers are responsible for
all bank handling fees and charges associated with doing business with the WIC
12VAC5-195-600. Sanctions and administrative actions.
A. Each federal fiscal year, the state agency shall conduct
compliance investigations on a minimum of 5.0% of authorized
(7 CFR 246.12), including completing investigations of all high risk stores
retailers, all probationary stores retailers, and
selective nonhigh risk stores retailers. The state agency will
conduct at least two compliance buys at each store retailer
selected for an investigation.
B. The state agency
will shall provide written
notification to the authorized store retailer of the
investigation results, including the store's retailer's violation
of any statutes or regulations governing its participation in the WIC Program unless
fraudulent activities have been documented. Once an investigation has been
closed, stores retailers with documented violations will shall
receive a final written report of the agency's findings. The final report will
identify what administrative action will shall be taken by the
state agency against the authorized store retailer.
are shall be categorized as either
state agency or federally mandated. For federally mandated violations, a
pattern consisting of four documented incidents of the same violation must
occur during a single investigation unless a pattern requirement is not
required by federal regulations.
D. For federally mandated violations
that include, but are
not limited to, including overcharge, fraud, trafficking in food
instruments, selling firearms, ammunition, explosives, controlled substances,
sale of alcohol or alcoholic beverages, or tobacco products, the
state agency will may not provide the store retailer
with prior written notice that a violation or violations were documented before
imposing administrative sanctions. This notification decision will be made
on a case-by-case basis, depending on the type of federally mandated violation
documented and if it is determined that notification would compromise the
investigation. E. For selective state agency violations, the state agency
shall not provide prior written notice that the violation has occurred, in
order to ensure the integrity of the investigative process. F. E. The type of documented violation dictates
the administrative action taken including , but not limited to:
1. Provision of a written warning;
2. Imposition of a technical penalty fine;
3. Assessment of a civil monetary penalty (CMP) in lieu of disqualification; or
4. Disqualification of an authorized
The total period of disqualification imposed for state agency violations identified as part of a single investigation may not exceed one year. The state agency reserves the right to waive a disqualification requirement if the state agency determines that inadequate participant access would exist if the authorization were terminated.
G. F. The state agency uses shall use
a multitier sanction schedule that consists of:
Technical program violations
Represents procedural and food instrument handling errors.
$100 fine assessed per documented incident, as outlined in
the Sanction/Violation schedule
Serious program violations
Represents noncompliance errors documented
One-year disqualification, if a pattern of noncompliance
Critical program violations
Represents mandatory federal sanctions that require a pattern of noncompliance, i.e., overcharging.
Four documented incidents during a single investigation as outlined in the Sanction/Violation schedule Three-year disqualification; or
One documented incident as outlined in the Sanction/Violation schedule during a single investigation if a pattern is not required Three year disqualification.
Major program violations
Represents mandatory federal sanctions, i.e., administrative finding of trafficking
Six-year disqualification only one documented incident is required as outlined in the Sanction/Violation schedule; or
Permanent disqualification only one documented incident is required, as outlined in the Sanction/Violation schedule.
Represents a documented violation, but does not warrant points being assessed and/or a fine being charged.
Written warning sent to the
The date on which violations become effective is determined by
documented date indicated on the final compliance
investigation letter. Class A, B, and E violations have an active life of one
year, a Class C violation has an active life of three years, and a Class D
violation has an active life of six years or permanent disqualification. H. G. If, within a 12-month period, a
retailer has a pattern of three documented incidents within a
12-month period of failure to meet the minimum stocking requirement or
failure to properly stamp 50 or more deposited food instruments, then the store
will retailer shall be disqualified for a one-year period unless the
state agency determines that inadequate participant access would exist if
the authorization were terminated. I. H. All documented overcharges or payments for
ineligible food items identified during a compliance investigation will shall
be considered a vendor retailer claim and be subject to
repayment. J. I. Copies of any investigative evidence
collected by the state agency from an open during a compliance
investigation will shall be available to the authorized store
retailer, upon request, once after the investigation has
been closed and the store retailer is notified in writing of the
final compliance investigation results. K. J. A retailer may apply for WIC authorization
after the store retailer has met any finished the
disqualification period imposed upon it. There is no automatic
reinstatement of a retailer once the disqualification period has been met
ended. L. K. The state agency shall not issue sanctions
solely as a result of complaints submitted by participants.
12VAC5-195-610. Participant access.
A. Prior to taking disqualification actions against an
store retailer, the state agency shall complete a
participant access assessment (7 CFR 246.12). This type of assessment is completed
for denied authorizations if an informal settlement meeting or full
administrative review is requested by a store retailer applicant.
Participant convenience is not a valid consideration for the state agencies in
making any adequate access decisions.
B. Participant access will be a factor considered by the state
agency in deciding if a
store retailer shall be assessed a civil
monetary penalty in lieu of disqualification or when a store retailer
applicant is eligible as an authorization exception.
C. The state agency shall use the same criteria established for making authorization exceptions in deciding if adequate participant access exists.
D. The participant access analysis completed by the state
agency contains confidential information. A copy of this internal work document
shall not be given to
retail stores retailers or their
12VAC5-195-620. Participant impact.
Participant impact may be an additional factor considered by
the state agency in deciding if a
store retailer shall be
assessed a civil monetary penalty in lieu of disqualification. For stores
retailers whose average number of unique participants is deemed high may
be retained in lieu of disqualification. The state agency will take into
consideration customer service impact and competitive pricing issues in making
any administrative exception decisions.
12VAC5-195-630. Retained in lieu of disqualification.
A. An authorized
store retailer with documented
administrative findings that warrant WIC Program disqualification actions may
be retained in lieu of disqualification if the state agency determines that inadequate
participant access would exist. The state agency will evaluate the impact on
participants and the preventive procedures the store retailer
intends to take in order to decide if the store retailer will be
allowed to pay a civil monetary penalty fine rather than being
B. The state agency shall notify the authorized
in writing if it will be retained in lieu of disqualification and the civil
monetary penalty fine that has been assessed (7 CFR 246.12).
C. If a retailer fails to pay a civil monetary penalty that
has been assessed,
then the state agency shall disqualify the retailer
for a period equal to the sanction for which the civil monetary penalty was
12VAC5-195-640. Civil monetary
penalty (CMP) fines penalties.
civil monetary penalty (CMP) fine CMP may
be assessed for documented state agency and federally mandated violations (7
B. The state agency uses a federally mandated formula to
calculate both state and federally mandated CMPs that are assessed. The maximum
civil monetary penalty assessed shall comply with federal requirements as
outlined in 7 CFR 246.12. The state agency
is unable to cannot
make any reductions in to the maximum CMP amount due since
for federally mandated violations because this formula is defined in
C. The same formula
is shall be used to
calculate the civil monetary penalty fine for stores retailers
retained in lieu of disqualification due to documented state agency sanctions. The
state agency For state agency violations only, the state WIC director of
his designee has the authority to reduce or waive the fine penalty
amount being assessed against the store by no more than 50% retailer.
The state agency must document in its records the specific factors supporting
this administrative decision.
D. A CMP
shall may be paid in full a
lump sum or based upon through an agreed installment plan. Failure
of the authorized store retailer to pay any scheduled
installments in a timely manner will shall lead to the store's
retailer's disqualification for the original disqualification period.
E. Payments shall be made by certified check, cashier check, or money order. Payments shall be made out to the Virginia WIC Program and mailed to the address identified on the penalty fine statement.
F. The state agency
will shall process all past
due obligations for any of the following including penalty administrative
fines, vendor retailer claims, civil monetary penalty fines
penalties, or overcharges overcharge repayments assessed
against authorized stores retailers in accordance with the Office
of the Comptroller's Policies and Procedures, Section Number 205000 (Accounts
Receivable), dated June 2004. The state agency will shall also
process all past due financial obligations in accordance with the Virginia Debt
Collection Act (§ 2.2-4800 et seq. of the Code of Virginia).
G. The state agency shall notify the
Food Stamp Program
Supplemental Nutrition Assistance Program in writing within 15 calendar
days after assessing a CMP against an authorized store retailer
being retained in lieu of disqualification.
12VAC5-195-650. Disqualification administrative actions.
A. Voluntary withdrawal or nonrenewal in lieu of
disqualification is not permitted for documented mandatory federal violations.
The state agency may
use only allow voluntary withdrawal or nonrenewal
for state agency sanctions only.
B. The state agency shall disqualify an authorized
retailer for any of the following reasons:
1. Failure to comply with general requirements and conditions as established in the retailer agreement;
2. Failure to meet program requirements as documented
during the compliance investigation process;
3. Reciprocal administrative action due to the
being disqualified from the Food Stamp Program (FSP) Supplemental
Nutrition Assistance Program;
4. Failure to pay a CMP or
vendor retailer claim
within 30 20 calendar days after being assessed it is
due or failure to pay an installment plan payment when due;
5. Provision of false, incomplete, inaccurate, or
misleading information that affects the
6. Repeated failure to maintain the minimum stocking requirement; or
7. Failure to take documented remedial corrective actions.
C. The state agency shall notify the
food stamp Supplemental
Nutrition Assistance Program office of any WIC Program disqualifications and
termination actions taken against an authorized store retailer
Authorized stores that are being If an authorized
retailer is disqualified primarily due primarily to
documented overcharges, that have participated participates
in a full administrative review, and the adjudication officer's findings
confirm that the disqualification actions being taken by the state
agency are appropriate, then a fine will shall be assessed. A
maximum administrative fine of $999 shall be assessed for two or more
documented overcharges during a single investigation. If only one overcharge
incident was documented during a single investigation, then a maximum fine of
$500 shall be assessed. If the disqualification action does not involve any
documented overcharges, then no fine will shall be assessed.
12VAC5-195-660. Informal settlement meetings.
A. If an authorized
store retailer is being
considered for possible adverse action, including but not limited to
authorization denial and program disqualification, the state agency shall offer
an optional informal settlement meeting with store retailer
management prior to taking administrative action. The state WIC director or
designee shall be in attendance. The purpose of the informal settlement meeting
1. Identify areas of noncompliance;
2. Provide a forum for the
store retailer to
submit information about the impact of the adverse action on WIC participants;
3. Review criteria for authorization exception decisions pursuant to 12VAC5-195-370;
4. Review the inadequate participant access results, if applicable;
5. Review the civil monetary penalty
fine for stores
retailers being retained in lieu of disqualification, if applicable; and
6. Provide information to the
regarding its appeal rights, if applicable.
retail store retailer or applicant has 15
calendar days from the date of receipt of the state agency correspondence to
postmark a written request for an informal settlement meeting.
C. The request for the informal settlement meeting can be hand
delivered, mailed by US mail, UPS, or FedEx, sent by facsimile transmission or
sent via email to the
vendor manager state agency.
D. Upon receipt of the
retail store's retailer's
or applicant's request for an informal settlement meeting, the state agency
will confirm a date, time, place and method for the informal settlement
E. All requests to reschedule the meeting must be submitted in writing at least 24 hours before the scheduled meeting date, unless an emergency occurs, as determined at the discretion of the state WIC director or designee.
F. If the
retail store retailer representative
is more than 45 minutes late from the agreed upon meeting start time, then this
will be considered a "no show" unless he can provide documentation
that the state WIC director or designee determines justifies his tardiness or
failure to appear. The state agency will proceed with administrative decisions
without the input of the retail store retailer should the
representative either fail to schedule, fail to appear, or fail to reschedule
the informal settlement meeting.
G. Informal settlement meetings are either conducted through
face-to-face meetings in Richmond, Virginia, or via video conference. For
informal settlement meetings that are held via video conference, the authorized
store retailer or applicant would be required to travel to a
local agency that has videoconferencing equipment available.
H. After the informal settlement meeting is held and all
supporting documentation is received by the state agency, the state agency
shall send within 15 days a written summary of the meeting's results to a
store retailer representative. If the resolution
offered from the informal settlement meeting is unacceptable to the retail
store retailer, then the retail store retailer or applicant
may request a full administrative review in writing. This written request must
be submitted to the vendor manager state agency and postmarked
within 15 calendar days from the date of receipt of the informal settlement
meeting summary. The vendor manager state agency will identify if
the store's retailer's request qualifies under federal
regulations for a full administrative review. If the store's retailer's
request is not eligible, then the store retailer will receive a
written response from the vendor manager state agency of this
12VAC5-195-670. Full administrative review.
retail stores retailers and
applicants shall be offered an opportunity to request a full administrative
review only for only the adverse action cited in subsection O of
retail store retailer or applicant has 15
calendar days from the date of receipt of the denial notice , either by
letter or an electronic format, or the disqualification letter,
either by letter or an electronic format, to request a full administrative
C. The request for the full administrative review
be mailed by US mail, sent by facsimile transmission or sent via email to the vendor
manager state agency. If the request is mailed, it must be
postmarked within 15 calendar days from the date of receipt of letter or
electronic notification from the state agency, whichever comes first.
retail store retailer or applicant must
should indicate whether or not he will intends to
be represented by an attorney when the full administrative review request is
made. The retail store This does not preclude the retailer or
applicant from seeking legal counsel at any time. At least five days prior to
the scheduled full administrative review, the retailer or applicant must also
provide the state agency with copies of any written information to be used
that it wishes to use during the review and names of witnesses that will
be called at least five days prior to the scheduled full administrative review
it will call. Failure to notify provide the state agency of
with these items may result in a rescheduled date and time for rescheduling
the full administrative review or the exclusion of documents and witnesses from
the full administrative review.
Upon Within 30 days of receipt of the retail
store's retailer's or applicant's request for a full administrative
review, after consulting with the retailer or applicant and the adjudication
officer, the state agency will shall confirm a date, time,
and place for the review within 30 days. For authorized stores retailers
and applicants, the review must shall be scheduled to take
place within 60 calendar days after the written request is received by the
state agency, unless otherwise agreed to by the parties involved.
F. Failure to attend the scheduled review
on the agreed
upon date and time will shall lead to the retail store retailer
forfeiting its rights to any further administrative reviews.
retail store retailer or applicant will have
one opportunity to reschedule the full administrative review's date or time.
All requests to reschedule the review date or time must be submitted in writing
at least 24 hours before the scheduled review date , unless an
emergency occurs, as determined at the discretion of the state WIC director or
designee good cause can be shown as determined by the adjudication
officer. Rescheduled reviews shall take place within four weeks of the
originally scheduled date unless the parties mutually agree on a later date
otherwise agreed to by the parties.
H. If the
retail store retailer representative
is more than 45 minutes late from the agreed upon to the review,
start time, then this will shall be considered a "no
show" unless he can provide documentation that the WIC director or
designee determines justifies his tardiness or failure to appear show
good cause as determined by the adjudication officer. This outcome means
that the retail store has forfeited its rights to a full administrative review.
I. A full administrative review
is shall be
conducted by an adjudication officer who is employed by the Virginia Department
of Health. The adjudication officer shall ensure that administrative actions
taken by the WIC Program are consistently and fairly applied and that those
administrative actions comply with established policies, procedures, and
federal and state statutes and regulations. A representative from the
state agency will shall present its case to the adjudication
officer and retail store retailer or applicant representative.
Conversely, the storeowner retailer owner or designated
representative, which may include legal counsel, will shall
present its case to the adjudication officer.
J. All full administrative reviews
are shall be
held in Richmond, Virginia.
K. After a full administrative review is held, the state WIC director shall provide written notification of the adjudication officer's decision, including the basis for the decision, to the applicant or authorized retailer within 90 calendar days of the date of receipt of the full administrative appeal review request, unless otherwise agreed to by the parties involved. This notification will also be sent to the appropriate USDA Food and Nutrition Services office.
retail stores retailers being disqualified
may continue to deposit WIC food instruments until a decision has been rendered
from the full administrative review by the adjudication officer.
The adverse action effective date shall be postponed by the state agency
pending the outcome of the review.
M. In accordance with 7 CFR 246.18, if an authorized
retailer does not request a full administrative review, then
disqualification becomes effective 15 calendar days after the retailer receives
the state agency's written disqualification letter.
N. An authorized retailer being retained in lieu of
disqualification for a state agency violation may elect to voluntarily
withdraw from the WIC Program rather than pay a mandated civil monetary penalty
fine. If the retailer voluntarily withdraws and does not pay a the
civil monetary penalty fine that previously had been imposed by the program,
then a disqualification status will shall be documented in the
state agency's records. The disqualification period may range from one to six
years, depending on the type of sanctions and violations documented by the
O. The state agency shall provide a full administrative review
retail stores retailers or applicants, upon request,
for the following adverse actions pursuant to 7 CFR 246.18:
1. Denial of authorization based on the
of the retailer selection criteria for competitive price or for
minimum variety and quantity of authorized supplemental foods or on a
determination that the vendor retailer is attempting to circumvent
a sanction (7 CFR 246.12);
2. Denial of authorization based upon the
selection criteria for business integrity or for a current Food Stamp Supplemental
Nutrition Assistance Program disqualification or civil money penalty for
hardship (7 CFR 246.12);
3. Denial of authorization based on a state agency established
retailer selection criteria if the basis of the denial is a vendor
WIC retailer sanction or a Food Stamp Supplemental Nutrition
Assistance Program withdrawal of authorization or disqualification;
4. Denial of authorization based on the state agency's retailer limiting criteria (7 CFR 246.12);
5. Denial of authorization because a
submitted its application outside the timeframes during which applications are
accepted or processed as established by the state agency under (7 CFR
246.12) 7 CFR 246.12;
6. Termination of a retailer agreement because of a change in
or location, or cessation of operations (7 CFR
7. Termination of a retailer agreement for cause;
8. Disqualification based on documented WIC Program
violations; 9. 8. Disqualification based on a trafficking
conviction (7 CFR 246.12); 10. 9. Disqualification based on the imposition
of a Food Stamp Supplemental Nutrition Assistance Program civil
monetary penalty for hardship (7 CFR 246.12); 11. 10. Disqualification or civil monetary
penalty imposed in lieu of disqualification based on a mandatory sanction
imposed by another WIC state agency (7 CFR 246.12); or 12. 11. Imposition of a fine or a civil monetary
penalty in lieu of disqualification;
12. Denial of authorization based on the application of the retailer selection criteria for competitive price;
13. The application of the state agency's retailer peer group criteria and the criteria used to identify retailers that are above 50% retailers or comparable to above 50% retailers;
14. Denial of an application based on a determination of whether an applicant retailer is currently authorized by the Supplemental Nutrition Assistance Program;
15. A civil monetary penalty imposed in lieu of disqualification based on a Supplemental Nutrition Assistance Program disqualification under 7 CFR 246.12; and
16. Disqualification unless listed in subsection P of this section.
P. The state agency shall not provide a full
administrative review to
retail stores retailers that appeal the
following actions, pursuant to 7 CFR 246.18:
1. The validity or appropriateness of the state agency's
retailer limiting or selection criteria or retailer selection criteria
for minimum variety and quantity of supplemental foods, business integrity, and
current Supplemental Nutrition Assistance Program disqualification or civil
monetary penalty for hardship (7 CFR 246.12);
2. The validity or appropriateness of the state agency's
peer group criteria and the criteria for competitive price, including
peer group criteria and the criteria used to identify vendors retailers
that are above 50% vendors retailers or comparable to above 50% vendors
3. The validity or appropriateness of the state agency's participant access criteria and the state agency's participant access determinations;
4. The state agency's determination whether a
had an effective policy and program in effect to prevent trafficking and that
the ownership of the vendor retailer was not aware of, did not
approve of, and was not involved in the conduct of the violation (7 CFR
5. Denial of authorization if the state agency's
authorization is subject to the procurement procedures applicable to the state
6. The expiration of the retailer's agreement;
7. Disputes regarding food instrument payments and
retailer claims other than the opportunity to justify or correct a vendor
retailer overcharge or other error as permitted by (7 CFR 246.12);
8. Disqualification of a
vendor retailer as a
result of disqualification from the Food Stamp Supplemental Nutrition
Assistance Program (7 CFR 246.12);
9. The state agency's determination to include or exclude an
source from the state agency's list of state-licensed
wholesalers, distributors, and retailers and infant formula manufacturers
registered with the Food and Drug Administration manufacturer,
wholesaler, distributor, or retailer from the list required pursuant to 7 CFR
10. The state agency's determination whether to notify a
retailer in writing when an investigation reveals an initial violation
for which a pattern of violations must be established in order to impose a
sanction .; and
11. The validity or appropriateness of the state agency's prohibition of incentive items and the state agency's denial of an above 50% retailer's request to provide an incentive item to customers pursuant to 7 CFR 246.12.
Q. A full administrative review request shall not be denied or dismissed unless:
1. The request to the state agency is not postmarked or
received within 15 calendar days of the applicant or authorized
retailer's receipt of the notice of disqualification or adverse action;
2. The request to the state agency
submitted by an individual who does not have the legal or delegated authority
to represent the owner applicant or authorized retailer;
3. The retailer or authorized representative withdraws the request in writing;
4. The retailer or authorized representative fails
good cause to appear at the scheduled review date and time without good
cause as determined by the adjudication officer; or
5. The request for a full administrative review is not eligible for this consideration based on the specific exclusion criteria outlined in subsection P of this section.
12VAC5-195-680. Food application process.
A. Food items that are approved for purchase by eligible WIC participants must have a food application submitted and approved by the state agency. The food application process does not apply to WIC approved formulas.
B. The state agency shall conduct a review of the approved foods every two years. Food applications shall be accepted and processed during a two-month period.
C. The state agency shall notify prospective manufacturers, suppliers, and distributors when food applications will be accepted by sending them an announcement letter. The state agency shall also post the food application announcement letter on the state agency website.
D. The state agency shall maintain a database with the contact names and companies who previously submitted food applications or expressed an interest in having their products considered for WIC approval. Individuals may request to be added to the database on behalf of manufacturers by completing a food application contact form, which is an online form located on the state agency's website at http://www.vahealth.org/DCN/Publications/pubswic.htm.
E. Incomplete food applications shall not be eligible for selection and inclusion on the WIC approved food list.
F. The state agency is responsible for evaluating all completed food applications to ensure each product meets both federal and state nutritional and administrative guidelines.
G. After the food application evaluation and selection process has been completed, a new food list will be printed and distributed to local agencies, WIC participants, and retailers by the state agency. The state agency shall pay all costs associated with producing, printing, and distributing the WIC approved food list. Funds from manufacturers, suppliers, distributors, or other sources shall not be used to reprint the approved food list.
H. If a manufacturer, supplier, or distributor changes the name of an approved product whose trade name appears on the approved food list, the new product shall not be automatically eligible for purchase under the current food list. The manufacturer, supplier, or distributor must submit a written request to the state agency, a sample nutritional label for the new product, and documentation outlining the product availability at authorized retailers to have the new product considered for approval. Once this information is received, the state agency shall decide on a case-by-case basis if the new product can be transitioned under the current food list or must wait for the next food list submission cycle. A new product shall not be approved prior to it being available at retailer locations. If the new product is not eligible for inclusion under the current food list, the manufacturer, supplier, or distributor may submit a new food application using the new product name when food applications are being accepted.
I. If a manufacturer, supplier, or distributor changes the nutritional formulation of an approved product, the new product shall not be eligible for purchase under the current food list. The manufacturer, supplier, or distributor must submit a new food application for the new product when food applications are being accepted.
J. Manufacturers, suppliers, or distributors shall not send product samples to the state agency at any time.
K. Changes to the approved food list made during the scheduled two-year period may be made on a case-by-case basis as determined by the state agency based on federal guidance if applicable.
Food application contact form, an online form available at http://www.vahealth.org/DCN/Publications/pubswic.htm.
DOCUMENTS INCORPORATED BY REFERENCE (12VAC5-195)
Vendor Manual for the Virginia WIC Program, August 2008,
Virginia Department of Health. Virginia WIC Program Approved Food List, effective January
1, 2007, Virginia Department of Health. Retailer Agreement, effective July 1, 2008, Virginia
Department of Health. Volume No. 1 Policies & Procedures, Function No.
20000 General Accounting, Section No. 20500 Accounts Receivable, dated June
2004, Office of the Comptroller, Commonwealth of Virginia. Virginia WIC Program Sanction Violation Schedule, March
2009, Virginia Department of Health. USDA Memo SFP 09-020 Clarification on the use of the WIC
acronym and logo, January 2009, United States Department of Agriculture, Food
and Nutrition Service.