Chapter 3701-42 WIC Program

As used in this chapter:

(A) “Alternate shopper” means any person who is designated by a participant, or by a parent or caretaker of an infant or child participant, to obtain and transact food instruments and who is listed on the “Ohio WIC program ID” card. Parents or caretakers applying on behalf of infants or children participants are not alternate shoppers.

(B) “Authorized supplemental foods” means authorized supplemental foods, as listed on the WIC authorized foods list prepared under paragraph (A) of rule 3701-42-05 of the Administrative Code, that are authorized by the director for distribution to participants in exchange for food instruments.

(C) “Contract” means a written agreement between the department and a vendor or farmer in which the vendor or farmer agrees to transact and redeem food instruments and fruit and vegetable vouchers in accordance with the provisions of this chapter.

(D) “Cost containment contract” means a contract in which the department agrees to pay and the vendor agrees to accept as payment for WIC transactions during the term of the contract, no more than eighty percent of the maximum value of the food instrument or the actual amount of sale, whichever is less.

(E) “Coupon” or “WIC coupon” means a document issued by the department that may be exchanged by a participant or alternate shopper for authorized supplemental foods at a WIC retail vendor location.

(F) “Department” means the Ohio department of health.

(G) “Director” means the director of health or his or her designee.

(H) “EFT” means electronic funds transfer whereby payment, for properly redeemed and submitted WIC coupons, is deposited electronically into a vendor’s financial institution.

(I) “Farmer” or “WIC farmer” means an individual authorized by the director under a contract executed pursuant to rule 3701-42-10 of the Administrative Code to sell authorized fruits and vegetables to participants or alternate shoppers at a farmstand or farmers’ market.

(J) “Farmer violation” means any intentional or unintentional action of a farmer, farmer’s officers, managers, agents, or employees (with or without the knowledge of management) that violates the farmer contract, federal or state statutes, regulations, rules, policies or procedures governing the WIC program.

(K) “Farmers’ market” means an association of local farmers who assemble at a defined site for the purpose of selling their produce directly to consumers on set days and hours.

(L) “Farmstand” means a site where the farmer sells produce directly to consumers on set days and hours.

(M) “Fruit and vegetable voucher,” “cash value voucher,” or “voucher” means the document issued by the department that may be used by a participant or alternate shopper to obtain authorized fruits and vegetables.

(N) “FNS” means the food and nutrition service of the United States department of agriculture.

(O) “Food instrument” means a voucher, coupon or other document that is used to obtain authorized supplemental foods.

(P) “Infant formula supplier” means a supplier authorized by the director and included on the list of authorized infant formula suppliers pursuant to paragraph (E) of rule 3701-42-05 of the Administrative Code.

(Q) “Local WIC agency” means a public or private non-profit health or human services agency that has a contract with the director to assess nutritional needs and to certify participants for participation in the WIC program within a specified local area.

(R) “Location” means a fixed and permanent site operating as a grocery store or pharmacy.

(S) “Participant” means a pregnant, postpartum, or breastfeeding woman, or an infant or child who is receiving authorized supplemental foods, food instruments or fruit and vegetable vouchers under the WIC program.

(1) “Breastfeeding woman” means a woman up to one year postpartum who is breastfeeding her infant.

(2) “Child” means a person who has had his or her first birthday but who has not yet attained his or her fifth birthday. 3701-42-01 2

(3) “Infant” means a person less than one year of age.

(4) “Postpartum woman” means a woman up to six months after termination of pregnancy.

(5) “Pregnant woman” means a woman determined to have one or more embryos or fetuses in utero.

(T) “Participant access” means the ability of participants to procure authorized supplemental foods and infant formulas without undue hardship.

(U) “Redeem” means the process by which a food instrument or fruit and vegetable voucher is transacted by a vendor or farmer and submitted to a designated processing firm for payment.

(V) “Special infant formula” means an exempt infant formula as defined in 7 C.F.R. section 246.2 (in effect on January 1, 2008). Special infant formula requires a physician’s prescription.

(W) “Time of application” means the date the applicant or vendor initially submits an application for a WIC retail vendor contract.

(X) “Vendor price survey” means a document that is mailed to WIC retail vendors by the department on a periodic basis to determine the prices charged for selected authorized supplemental foods.

(Y) “Vendor violation” means any intentional or unintentional action of a vendor’s owners, officers, managers, agents, or employees (with or without the knowledge of management) that violates the vendor contract, federal or state statutes, regulations, rules, policies, or procedures governing the WIC program.

(Z) “WIC program” means the special supplemental nutrition program for women, infants, and children authorized by section 17 of the “Child Nutrition Act of 1966,” 42 U.S.C.A. 1786, (in effect on January 2, 2006) and administered in Ohio by the department under section 3701.132 of the Revised Code.

(AA) “WIC retail vendor” or “vendor” means a sole proprietorship, partnership, cooperative association, corporation, limited liability company, or other business entity that operates one or more grocery stores or pharmacies authorized by the director to provide authorized supplemental foods to participants or alternate 3701-42-01 3 shoppers under a retail vendor contract executed under paragraph (A) of rule 3701-42-03 of the Administrative Code. Each store must have a single, fixed location.

(BB) “WIC transaction” means the receipt by a participant or alternate shopper of authorized supplemental foods in exchange for a food instrument or voucher.

Effective: 10/01/2009

R.C. 119.032 review dates: 02/20/2009 and 10/01/2014

Promulgated Under: 119.03

Statutory Authority: 3701.132

Rule Amplifies: 3701.132

Prior Effective Dates: 1/10/1992 (Emer.), 4/1/94, 1/26/96, 6/7/99, 7/1/01, 6/21/04, 3/20/06

(A) For purposes of providing authorized supplemental foods to participants, the director may operate any FNS approved food delivery system as he or she considers appropriate. The director periodically shall determine and may implement the food delivery system that he or she considers best serves participants in a particular county. Rules 3701-42-02 to 3701-42-09 of the Administrative Code establish the requirements for vendors to participate in a retail food delivery system. Under a retail food delivery system, the director contracts with individuals and business entities that operate grocery stores or pharmacies in a given county to provide authorized supplemental foods to participants or proxies in exchange for food instruments.

(B) Notwithstanding paragraphs (B) and (C) of rule 3701-42-03 of the Administrative Code, the director may enter into contracts with applicants in selected counties for the purpose of implementing a pilot program.

(C) The director shall provide advance written notice of any pilot program to potential vendors in the counties selected for the pilot program. The notice for the pilot program shall include the application requirements, the proposed contract period, and any other related requirements to participate in the pilot program. Such notice shall also be published in a newspaper of general circulation within the county.

Effective: 03/20/2006

R.C. 119.032 review dates: 11/08/2005 and 03/01/2011

Promulgated Under: 119.03

Statutory Authority: 3701.132

Rule Amplifies: 3701.132

Prior Effective Dates: 1/10/1992, 4/12/92, 1/26/96, 6/7/99, 6/21/04

(A) Any sole proprietorship, partnership, cooperative association, corporation, limited liability company or other business entity that owns and operates a grocery store or a pharmacy in a county served by a retail food delivery system may apply to the director for authorization to be a vendor in accordance with this rule. The director shall authorize vendors by entering into contracts with applicants that the director has selected in accordance with the criteria established under this rule. The contracts shall be for terms of no more than three years. Unless otherwise provided in this rule, contract beginning dates shall be consistent with paragraph (C) of this rule.

(B) To apply for a contract, an applicant or authorized representative of the applicant shall complete an application packet on forms prescribed by the director. The applicant shall deliver the completed application to the director by hand-delivery, U.S. mail, or overnight mail at the address indicated on the application form. It is the applicant’s responsibility to obtain documentation of the director’s timely receipt of the application.

(1) The completed application must be postmarked or received by the director no fewer than one hundred twenty days before the contract beginning date, as set forth in paragraph (C) of this rule.

(a) If an application is received timely but the application is not complete, the director may request additional information to make the application complete or accurate. The additional information must be postmarked or received by the director no fewer than ninety days before the contract beginning date, as set forth in paragraph (C) of this rule.

(b) If a complete application is postmarked or received by the director fewer than one hundred twenty days before the contract beginning date, as set forth in paragraph (C) of this rule, but before the ninetieth day before the contract beginning date, the director may consider the application for approval as a cost containment contract only.

(c) Except as provided in paragraph (B)(2) of this rule, if a complete application is postmarked or received by the director fewer than ninety days before the contract beginning date, as set forth in paragraph (C) of this rule, the application will not be considered.

(2) If an application, which is complete except for verification of food stamp authorization, is received by the director within the time periods listed in paragraph (B)(1) of this rule, and the applicant has a food stamp application pending, the director may consider the application for approval in accordance with paragraph (B)(1)(a) or paragraph (B)(1)(b) of this rule, whichever is applicable, if a copy of the food stamp certificate is received prior to the contract beginning date.

(3) If the applicant does not own or operate the business at the location that the applicant is proposing to contract as a vendor at the time of application, the applicant may submit the application and include the address of the location and the estimated opening date. The director shall process the application to the extent possible and complete the processing of the application upon the opening of the location. Once the application has been fully processed, the director may contract with the applicant for the location provided that the applicant and location comply with all other requirements of this rule. The applicant may not service participants until the director notifies the vendor that the location may begin accepting food instruments.

(4) Notwithstanding the application submission requirements set forth in paragraph (B)(1) of this rule and the contract beginning dates in paragraph (C) of this rule, the director may approve a contract under either of the two conditions set forth below. The contract beginning date shall be the date specified in paragraph (C) of this rule or the date the contract is signed by the director and shall expire at midnight the day prior to the next contract beginning date specified in paragraph (C) of this rule.

(a) A vendor in good standing with the WIC and FNS food stamp programs may apply at any time to add a location to an existing contract within the same region if the proposed location is under the same tax identification number and the vendor has not been denied a WIC contract at that location within the previous twelve months.

(b) An applicant who purchases or otherwise acquires a store or pharmacy that is a current vendor location in good standing, may apply for a new WIC contract for that location provided that the application meets all other requirements of this rule.

(i) If the location is disqualified for a period of time less than a permanent disqualification or is in the process of being disqualified from the WIC program or FNS food stamp program at the time the applicant purchased or otherwise acquired the store or pharmacy, the director shall not enter into a contract for that location until after the expiration of the disqualification period.

(ii) If the location is permanently disqualified, the director may consider approving that application no earlier than six years after the effective date of the disqualification.

(5) The director may accept applications for a contract to begin in one year increments from the contract beginning date specified in paragraph (C) of this rule for that region. Approved applications shall be referred to as pick-up contracts and shall expire at midnight the day prior to the next contract beginning date specified for that region. The completed application for a pick- up contract must be postmarked or received by the director no fewer than one hundred twenty days before the pick-up contract beginning date.

(a) If an application is received timely in accordance with paragraph (B)(5) of this rule, but the application is not complete, the director may request additional information to make the application complete or accurate. The additional information must be postmarked or received by the director no fewer than ninety days before the pick-up contract beginning date.

(b) If a complete application is postmarked or received by the director fewer than one hundred twenty days before the pick-up contract beginning date, the director may consider the application for approval as a cost containment contract only.

(c) Except as provided in paragraph (B)(2) of this rule, if a complete application is postmarked or received by the director fewer than ninety days before the contract beginning date, the application will not be considered.

(6) Except as otherwise provided in this rule, if an application is postmarked or received fewer than one hundred twenty days before the contract beginning date, as set forth in paragraph (C) of this rule, or is received after the contract beginning date, the application shall be considered late and shall not be processed for that contract beginning date.

(C) The regions and contract beginning dates shall be as follows:

(1) Region one shall consist of Allen, Ashland, Auglaize, Crawford, Defiance, Delaware, Erie, Fulton, Hancock, Hardin, Henry, Huron, Knox, Lorain, Lucas, Marion, Morrow, Ottawa, Paulding, Putnam, Richland, Sandusky, Seneca, Union, Van Wert, Williams, Wood and Wyandot counties. The three-year contract beginning date for vendors in region one shall be July first 2005 and every third July first thereafter.

(2) Region two shall consist of Ashtabula, Columbiana, Geauga, Lake, Mahoning, Medina, Portage, Stark, Summit, Trumbull, and Wayne counties. The three-year contract beginning date for vendors in region two shall be July first 2004 and every third July first thereafter.

(3) Region three shall consist of Adams, Brown, Butler, Champaign, Clark, Clermont, Clinton, Darke, Fayette, Greene, Hamilton, Highland, Logan, Madison, Mercer, Miami, Montgomery, Preble, Shelby, and Warren Counties. The three-year contract beginning date for region three shall be January first 2005 and every third January first thereafter.

(4) Region four shall consist of Athens, Belmont, Carroll, Coshocton, Fairfield, Franklin, Gallia, Guernsey, Harrison, Hocking, Holmes, Jackson, Jefferson, Lawrence, Licking, Meigs, Monroe, Morgan, Muskingum, Noble, Perry, Pickaway, Pike, Ross, Scioto, Tuscarawas, Vinton, and Washington counties. The three-year contract beginning date for region four shall be January first 2003 and very third January first thereafter.

(5) Region five shall consist of Cuyahoga county. The three-year contract beginning date for region five shall be July first 2004 and every third July thereafter.

(D) The director shall enter into a contract with an applicant if the applicant meets all of the following criteria and the addition of the location will not exceed the maximum locations for the county, as determined in accordance with paragraph (E) of this rule.

(1) The applicant has truthfully, accurately and fully completed, signed and submitted to the department an application for a contract, including the following additional documentation:

(a) Sufficient IRS documentation of his or her current federal employer identification number. Sufficient documentation shall include a current United States internal revenue service (IRS) deposit coupon, letter or mailing label that contains both the IRS insignia and the applicant’s federal employer identification number;

(b) Properly completed EFT form with a copy of a void check or deposit form for each location receiving reimbursement;

(c) Verification of the applicant’s current FNS food stamp program authorization;

(d) Completed applicable vendor price survey; and

(e) Any other documentation required by the director.

(2) The applicant or one or more representatives of the applicant from each proposed location shall attend a vendor training session at the time and place set by the department or local WIC agency.

(3) The applicant is in compliance with rule 3701-42-05 of the Administrative Code, specifically, the requirements for minimum authorized foods stocking, price posting, and purchasing infant formula from an authorized infant formula supplier.

(4) The applicant, if a current WIC vendor, submitted the quarterly vendor price surveys in compliance with the requirements set forth in rule 3701-42-05 of the Administrative Code.

(5) If applicable, during the one year period prior to the date of application submission and during the review of the application, the applicant:

(a) Had gross receipts of which not more than thirty percent were derived from the sale of alcoholic beverages;

(b) Submitted for payment:

(i) A monthly average of at least one hundred twenty coupons or equivalent WIC transactions for each contracted store location; or

(ii) A monthly average of at least ten coupons or equivalent WIC transactions for each contracted pharmacy location; and

(c) Had gross food sales of which less than fifty per cent were derived from WIC sales.

(6) Neither the applicant nor any related or affiliated business entity is currently under disqualification from the WIC program or under disqualification, suspension, or withdrawal from the FNS food stamp program.

(7) If the applicant was assessed an FNS food stamp civil money penalty for hardship in lieu of disqualification, the disqualification period that would have been imposed has expired.

(8) The applicant has paid in full or is current in payment of any money owed to the department.

(9) During the three years prior to the date of the application submission and during the review of the application:

(a) The applicant has not been denied a lottery sales agent license or has not had a lottery sales agent license suspended or revoked by the director of the state lottery commission pursuant to section 3770.05 of the Revised Code;

(b) Neither the applicant nor a current or former employee of the applicant while not an authorized vendor transacted and redeemed, food instruments at any time including the pendency of any administrative review, abbreviated review or other administrative or court proceeding. Notwithstanding this paragraph, the director may process an application if the applicant refunds to the department the sum of money paid to the applicant for food instruments transacted and redeemed while applicant was not authorized.

(10) During the six years prior to submission of the application and during the review of the application, neither the applicant nor any of the applicant’s current owners, officers, or managers, have been convicted of or had a civil judgment entered against them for any activity indicating a lack of business integrity. Activities indicating a lack of business integrity include fraud, antitrust violations, embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, receiving stolen property, making false claims, and obstruction of justice.

(11) Upon request by the director, the applicant provides proof of any necessary local license, other regulatory approval to operate at each location specified in the application, or other documents to substantiate compliance with this rule. The director, at his or her discretion, may at any time require from any applicant or vendor additional documentation.

(12) Entering into a contract will not create a conflict of interest as defined by applicable state laws, regulations, and policies between the vendor and the state agency or its local agencies.

(13) Each location at which the applicant proposes to provide authorized supplemental foods is a fixed and permanent business location and is not at an address or within a building where food instruments are distributed.

(E) The director shall not approve contracts that would exceed the maximum number of locations for the county. Prior to each regional contract beginning date, the director shall determine the maximum number of store and pharmacy locations using the most recent verifiable participant data available ensuring participant access to authorized supplemental foods.

(1) The maximum number of store locations in a given county shall be determined by applying the following participant-to-store ratios:

(a) In counties with four thousand or fewer participants, sixty participants per location; or

(b) In counties with more than four thousand participants, one hundred fifty participants per location.

(2) The maximum number of pharmacy locations in a given county shall be fewer than one and no more than three percent of the maximum number of store locations for that county.

(3) If the director receives a number of applications for locations that meet all of the criteria set forth in paragraph (D) of this rule but, if all were approved, would exceed the maximum number of locations as determined by paragraphs (E)(1) or (E)(2) of this rule, whichever is applicable, the director shall enter into a number of contracts not exceeding the maximum number of locations in accordance with the following requirements;

(a) The director shall contract with those applicants for store locations that have the lowest total price for authorized supplemental food items specifically selected for comparison by the director, compared to the total price charged by other applicants for the same authorized supplemental food items in the same county as determined by the department’s vendor price survey.

(b) The director shall contract with those applicants for pharmacy locations that are geographically located within the county to meet participant needs and that have the lowest total price for special infant formulas specifically selected for comparison by the director, compared to the total price charged by other applicants for the same special infant formulas in the same county as determined by the department’s vendor price survey.

(c) If two or more applicants have the same total price but cannot all receive a contract because the maximum number of locations would be exceeded, the director shall approve contracts for store locations in the order that their completed applications and vendor price surveys were postmarked in accordance with paragraph (B) of this rule. If two or more applicants for pharmacy locations have the same total price but cannot all receive a contract because the maximum number of locations would be exceeded, the director shall approve contracts based on the geographic need of the pharmacy location. If the applicants’ pharmacy locations are of equal benefit to the participants, the director shall approve contracts in the order that their completed applications and vendor price surveyswere postmarked in accordance with paragraph (B) of this rule.

(F) Notwithstanding paragraphs (B) to (E) of this rule, the director may contract with an applicant that has a current FNS food stamp program certificate if the director determines that the locations proposed by the applicant are needed to provide participants or alternate shoppers with appropriate access to authorized supplemental foods.

(G) The director may approve a cost containment contract where specified elsewhere in this chapter and in the following cases. The cost containment contract shall remain binding on the vendor throughout the contract period as established in paragraph (C) of this rule.

(1) The applicant did not meet the requirements under paragraph (D)(5)(a) to (D)(5)(c) of this rule for justifiable reasons as determined by the director;

(2) The location failed a pre-authorization site visit in that:

(a) The location did not openly and visibly display the authorized supplemental foods in the required size, type, or brand and/or in the minimum quantity.

(i) The shortage must have been in an amount not greater than ten percent of each required item; or

(ii) The shortage was unavoidable, as determined by the director, due to reasons beyond the applicant’s control, including labor strikes, natural disasters, or comparable events.

(b) The location did not have current prices clearly marked or posted on the authorized supplemental food items or on a sign immediately next to or in front of the items.

(3) The applicant meets all the requirements set forth in paragraph (D) or this rule, except that the application was not filed timely and the application is for a location that was disqualified, and the disqualification period has expired.

(H) Before the director enters into a contract with an applicant, the department or local WIC agency shall conduct a pre-authorization site visit of each proposed location in accordance with paragraph (H) of rule 3701-42-06 of the Administrative Code. Except as provided in paragraph (G) of this rule, the director shall deny the application for each location not in compliance with the applicable requirements prescribed by paragraphs (B) to (E) of rule 3701-42-05 of the Administrative Code.

(I) Except as otherwise provided in this rule, the director shall deny an application for authorization as a vendor if any of the criteria specified in paragraph (D) of this rule are not met. The director may impose a civil money penalty in lieu of denying an application if the director determines that it is in the best interests of the WIC program. The amount of the civil money penalty will not exceed two thousand five hundred dollars. In accordance with paragraph (B) of rule 3701-42-09 of the Administrative Code, a denial of an application shall be effective fifteen days from the date of the mailing of the denial notice.

(J) The director may deny a vendor application if the applicant has a history of non-compliance with the requirements of this chapter of the Administrative Code or if the director determines that the applicant provided false information in connection with its application for authorization.

(K) At the director’s discretion, the director may require an applicant or vendor to establish an electronic transaction system which may include, point of sale devises, scanners etc. at each location capable of serving WIC participants. A vendor shall be notified at least sixty days before the effective date of this requirement. The director shall terminate a vendor’s contract if the vendor fails to comply with this requirement.

(L) The contract does not become effective until signed by the applicant or applicant’s authorized representative and the director.

Effective: 03/20/2006

R.C. 119.032 review dates: 11/08/2005 and 03/01/2011

Promulgated Under: 119.03

Statutory Authority: 3701.132

Rule Amplifies: 3701.132

Prior Effective Dates: 1/10/1992, 4/12/92, 4/1/94, 1/26/96, 6/21/97, 6/21/2004

(A) An applicant is not authorized to act as a WIC retail vendor without a valid contract executed pursuant to paragraph (A) of rule 3701-42-03 of the Administrative Code. Vendors whose contracts have expired and applicants who have not yet received authorization from the director to be vendors shall not accept food instruments from participants or alternate shoppers. The department will not reimburse a vendor for WIC transactions that occurred after the contract expires and before a contract becomes effective.

(B) A contract executed by the director and a vendor pursuant to rule 3701-42-03 of the Administrative Code shall conform with the provisions of 7 C.F.R. 246.12 and the applicable provisions of this chapter of the Administrative Code. The contract shall list all locations in the applicable region in which the vendor is authorized to accept food instruments. The director shall issue to the vendor a notice of WIC authorization for each authorized location.

(C) The director may amend the contract at any time to include or incorporate additional provisions that are required because of changes in federal or state statute, regulation, or rule or to improve the administration, operation, or evaluation of the WIC program. The director shall notify vendors of any such amendments at least thirty days in advance of their effective date. A vendor may accept the amendments or may terminate the contract voluntarily as provided in paragraph (F) of this rule. A vendor that does not voluntarily terminate the amended contract after receiving notification under this paragraph is deemed to have accepted the amendments. A vendor may not appeal amendments to the contract.

(D) A contract is not assignable or transferable. A vendor shall not sell, assign, or transfer in any manner its rights under the contract. Any actual or attempted sale, assignment, or transfer of a contract shall render the contract void. The department will not reimburse the vendor for WIC transactions that occurred on or after the date the contract was rendered void.

(E) A vendor or its authorized representative, which may include the purchaser or operator of the location, shall notify the department in writing, by certified mail, return receipt requested, at least fifteen days before any scheduled change of ownership or operation, including, but not limited to a sale, lease, transfer, bankruptcy, dissolution, or cessation of business, or within thirty days after such event, if not scheduled. A “change of ownership or operation” also includes the death of a sole proprietor, the transfer of a controlling interest in, or voluntary or involuntary dissolution of, a vendor that is a corporation, limited liability company, partnership, cooperative association, or other business entity.

(1) The vendor shall cease accepting food instruments immediately upon the effective date of a change of ownership or operation unless otherwise authorized by the director in writing. Upon notice or other information that vendor’s location is the subject of a change of ownership or operation, the director shall terminate the vendor contract and shall not reimburse vendor for WIC transactions that occurred on or after the date of change of ownership or operation.

(2) If the vendor does not provide the department with notice of a change of ownership within thirty days from the effective date of the change of ownership, but continues to transact WIC food instruments, the director shall not accept a WIC application of an applicant for processing for that location for three years in accordance with paragraph (D)(9)(b) of rule 3701-42-03 of the Administrative Code. In lieu of not processing an application for three years, the director may impose a civil money penalty not to exceed two thousand five hundred dollars. Upon payment of the civil money penalty, the director may process an application from the new owner.

(F) A vendor may voluntarily terminate the contract for any reason. The vendor shall notify the department in writing, by certified mail, return receipt requested, at least fifteen days before the effective date of termination.

(1) If the vendor owes the department any outstanding payment, it shall pay the amount due in full before the effective date of termination. The department may obtain the amount due by withholding current or future payments that otherwise would be due to the vendor.

(2) Voluntary termination by a vendor shall not affect any action by the director to disqualify or otherwise sanction the vendor pursuant to rule 3701-42-08 of the Administrative Code, or to deny authorization pursuant to rule 3701-42-03 of the Administrative Code.

(G) The director may terminate the contract if state or federal funds are not appropriated or otherwise become unavailable. The director shall notify the vendor in writing, by certified mail, return receipt requested, at least fifteen days before the effective date of the termination.

(H) The director may terminate a contract if he or she determines that the vendor provided false information in connection with its application for authorization.

Effective: 03/20/2006

R.C. 119.032 review dates: 11/08/2005 and 03/01/2011

Promulgated Under: 119.03

Statutory Authority: 3701.132

Rule Amplifies: 3701.132

Prior Effective Dates: 1/10/1992, 4/12/92, 4/1/94, 6/7/99, 7/1/2001, 6/21/04

(A) The director shall develop a list of authorized supplemental foods and a list of minimum food stocking requirements. The director shall include copies of these lists in application packets to applicants for a contract and distribute copies to all affected local WIC agencies and vendors at least sixty days before the lists become effective. In addition, these lists shall be posted to the Ohio department of health’s website.

(1) At least every two years, the director shall review and amend the list of WIC authorized supplemental foods, including any applicable sizes, types, or brands.

(2) As frequently as determined necessary, the director shall review and may amend the list of minimum food stocking requirements including quantities, sizes, types, and brands of authorized supplemental foods.

(B) Each vendor and applicant for a contract shall at each location openly and visibly display for sale at all times all of the following minimum authorized supplemental foods in at least the minimum quantities, sizes, types, and brands as specified in the list of minimum food stocking requirements.

(1) A vendor or applicant of a store location shall display for sale at all times all of the following items in the minimum quantities, sizes, types and brands as specified in the list of minimum food stocking requirements:

(a) Liquid milk;

(b) Grade A white chicken eggs;

(c) Two types of authorized juice;

(d) One type of authorized peanut butter;

(e) Three types of authorized cereal, one of which must be whole grain;

(f) One type of authorized whole grain bread, brown rice, oatmeal in a canister, or corn or whole wheat tortilla;

(g) One type of authorized beans or one type of authorized peas;

(h) Two types of authorized fruits;

(i) Two types of authorized vegetables;

(j) One type of authorized infant cereal;

(k) Two types of authorized infant fruits;

(l) One type of authorized infant meat;

(m) Two types of authorized infant vegetables; and

(n) One type of authorized infant formula.

(2) A pharmacy location shall have the ability to supply special infant formula in the necessary quantity within twenty-four hours after a request by a participant, local WIC agency or state WIC agency.

(C) The director shall develop a vendor price survey and identify on the survey selected WIC authorized food items in a specified size, type, and brand that will be used for comparison by the director in making determinations pursuant to paragraph (E)(3) of rule 3701-42-03 of the Administrative Code. Vendors are required to complete the survey as requested by the department. If, during the application process, a vendor or applicant fails to record a price on the survey for a selected food item because the applicant does not stock that item, the director shall deem the applicant’s or vendor’s price for that item to be the highest price reported by vendors in that county as reported in the most recently submitted price surveys.

(D) Each vendor, farmer and applicant shall:

(1) Clearly mark or post current prices, including sale prices either on the authorized food items or on a sign immediately next to or in front of the items. If a price is not marked or posted for an item, the price listed on the vendor’s most recent price survey submitted to the department is deemed to be the price of the item. 3701-42-05 2

(2) Ensure that prices for authorized foods are substantially similar to the prices for those foods, as recorded on the most recent price survey, as applicable, submitted to the department.

(3) Ensure that authorized supplemental foods are not offered for sale after the expiration date or last date of sale as printed on the food item.

(E) The director shall develop a list of authorized infant formula suppliers. The director shall include copies of this list in application packets to applicants for a contract.

(1) As often as determined necessary, but at least annually, the director shall review and amend the list of infant formula suppliers.

(2) Authorized vendors are required to purchase WIC authorized infant formula from a supplier on the authorized infant formula supplier list.

Effective: 10/01/2009

R.C. 119.032 review dates: 02/20/2009 and 10/01/2014

Promulgated Under: 119.03

Statutory Authority: 3701.132

Rule Amplifies: 3701.132

Prior Effective Dates: 1/10/1992 (Emer.), 4/12/92, 4/1/94, 1/26/96, 6/7/99, 6/1/04, 3/20/06 3701-42-05 4

(A) In addition to the requirements specified by rule 3701-42-05 of the Administrative Code and the requirements of the vendor contract executed under paragraph (A) of rule 3701-42-03 of the Administrative Code, a vendor shall comply with this rule.

(B) A vendor shall provide to participants and alternate shoppers only authorized supplemental foods in exchange for valid food instruments.

(C) A vendor shall furnish all the quantities, sizes, and types of food specified on the food instrument unless the participant or alternate shopper chooses less food.

(D) A vendor shall offer participants and alternate shoppers the same courtesies extended to other customers, including but not limited to acceptance of store and manufacturer coupons, discount cards, or other discounts offered.

(E) A vendor shall allow participants and alternate shoppers freedom to select among authorized supplemental foods recorded on the food instrument.

(F) In handling food instruments a vendor shall accept valid food instruments presented by a participant or alternate shopper and shall:

(1) Accept a coupon only after requiring the bearer of the food instrument to present a valid state of Ohio WIC program ID card;

(2) Total and record the prices of the authorized supplemental foods that were provided in the appropriate block on the front of the food instrument at the time of the WIC transaction;

(3) Total and record the true and accurate prices of the authorized supplemental foods that were provided in the appropriate block on the front of the food instrument.

(4) Total and record the quantities of the authorized supplemental foods that were provided in the appropriate blocks on the front of the food instrument at the time of WIC transaction;

(5) Record the true and accurate quantities of the authorized supplemental foods in the appropriate block on the front of the food instrument;

(6) Record the date in the appropriate block on the front of the food instrument at the time of the WIC transaction;

(7) Record the true and accurate date in the appropriate block on the front of the food instrument;

(8) The food instrument is completed in blue or black ink at the time of the WIC transaction;

(9) Obtain the signature of the participant or alternate shopper in the presence of the cashier at the time of the WIC transaction.

(10) Deduct the value of any manufacturer or store coupons, discount cards, or other discounts offered from the total before recording the actual amount of sale on the food instrument.

(11) Accept a food instrument only within the “valid period to redeem” indicated on the food instrument;

(12) Be responsible for all food instruments accepted or processed for payment by current and former employees or agents of the vendor. The vendor shall be responsible for the accuracy of any information submitted to the department by those employees or agents including any person or persons operating the store or pharmacy under a management agreement;

(13) Review all food instrument transactions that it has accepted to make certain that the actual amount of sale does not exceed the marked or posted prices or the prices charged to other customers; and

(14) Return to the department or local WIC agency within forty-eight hours any food instrument obtained not in the ordinary course of business, or if a vendor determines that the WIC transaction was not in accordance with this chapter and does not intend to submit the food instrument for payment. If the food instrument is a coupon and vendor intends to return the coupon to the department rather than the local WIC agency, the vendor shall mark “void” on the coupon.

(G) A vendor shall comply with all of the following:

(1) All federal and state laws, rules, and regulations governing the WIC program, including section 17 of the “Child Nutrition Act of 1966,” 80 Stat. 885, 42 U.S.C.A. 1786, as amended, pertinent federal regulations for the WIC program including 7 C.F.R. part 246, as amended and this chapter;

(2) All federal and state laws pertaining to nondiscrimination, including but not limited to Title VI of the “Civil Rights Act of 1964,” 78 Stat. 241, 42 U.S.C.A. 2000(d), as amended, pertinent regulations adopted thereunder, and 7 C.F.R. parts 15, 15A, and 15B, as amended; and

(3) All federal, state and local criminal laws either felony or misdemeanor, pertaining to the WIC program or any other FNS program.

(H) The department or local WIC agency or its designee may conduct announce and unannounced inspections of a vendor’s or applicant’s location at any time during business hours to determine compliance with WIC program requirements. The vendor or applicant and its employees and agents shall cooperate with the department or local WIC agency or its designee conducting an inspection and shall provide access to records pertinent to the WIC program, including WIC transactions, shelf price records, and inventory records. The department or local WIC agency or its designee may confiscate improperly accepted food instruments or WIC transactions.

(I) A vendor shall be subject to audit by the department and FNS for the time period covering any present or previous WIC authorization.

(1) A vendor shall maintain all records of purchases, gross sales receipts, and invoices for all authorized supplemental foods for a period of not less than three years after the end of the federal fiscal year, and upon request, shall make available the records to the department and FNS.

(2) Upon request, a vendor also shall make available to the department and FNS all food instruments that are stored at any of its locations or that are otherwise under the vendor’s control.

(3) A vendor shall keep and make available to the department access to all WIC program documents, including price surveys, disbursement, and redemption documents for three years after the end of the federal fiscal year (October first to September thirtieth) to which they pertain. If any litigation, claim, negotiation, audit, or other action involving the records has begun during the three-year period, the vendor shall keep the records until all issues are resolved.

(J) A vendor shall complete the department’s price survey for each location and submit them to the department within fifteen calendar days from receipt of the request from the department. Prices recorded on the survey shall reflect the actual amounts charged to all customers on the day that the survey was completed.

(K) A vendor shall respond in writing within fifteen calendar days after receiving the department’s request for verification of ownership of the business entity or store locations and for verification of authorized supplemental food purchases and sales.

(L) A vendor shall maintain current status as an authorized vendor under the FNS food stamp program. This paragraph shall not apply to a pharmacy that is authorized to provide only special infant formula.

(M) A vendor shall send one or more representatives from each location to all required training sessions scheduled by the local WIC agency or the department. A vendor shall inform and train cashiers, other store personnel, and agents on WIC program requirements.

(N) A vendor shall maintain the appropriate notice of WIC authorization issued under paragraph (B) of rule 3701-42-04 of the Administrative Code in a prominent place at each location.

(O) A vendor shall not do any of the following:

(1) Exchange food instruments for cash, firearms, ammunition, explosives, or controlled substances as defined in 21 U.S.C. 802;

(2) Exchange food instruments for alcohol or alcoholic beverages or tobacco products;

(3) Exchange food instruments for credit, including rainchecks or non-food items.

(4) Provide refunds or permit exchanges for authorized supplemental food except for an exchange of an identical authorized supplemental food item when the original authorized food item is defective, spoiled, or has exceeded its “sell by,” “best if used by,” or other date limiting the sale or use of the food item. An identical authorized supplemental food item means the exact brand and size as the original authorized supplemental food item obtained and returned by the participant or alternate shopper;

(5) Provide the participant or alternate shopper with any monetary change from a WIC transaction;

(6) Require a participant or alternate shopper to exchange his or her selection of authorized supplemental foods because the price of the item or items selected is greater than the “not to exceed” amount printed on the food instrument. The vendor shall not request or accept any compensation for the price difference between the price of the item or items selected and the amount paid by the department;

(7) Redeem food instruments for authorized supplemental foods not received by the participants or alternate shoppers;

(8) Redeem food instruments in which the vendor charged participants or alternate shoppers more for authorized supplemental foods than vendor charged other customers or vendor charged more than the shelf price;

(9) Charge a participant or alternate shopper for authorized supplemental foods obtained with food instruments or seek restitution from a participant or alternate shopper for a food instrument not paid or partially paid by the department;

(10) Charge sales tax for the purchase of authorized supplemental foods;

(11) Receive, transact, redeem, or seek reimbursement from the department for a food instrument accepted by another person or location, whether or not authorized as a vendor under rule 3701-42-03 of the Administrative Code;

(12) Claim reimbursement for the sale of an amount of a specific authorized supplemental food item which exceeds the store’s documented inventory of that authorized supplemental food item for a specific period of time;

(13) Redeem a food instrument for unauthorized food items;

(14) Redeem a food instrument for foods in excess of the authorized supplemental food items listed on the food instruments;

(15) Provide home delivery of authorized supplemental foods; or

(16) Accept a food instrument on which the participant’s name, the quantity, size, or type of authorized supplemental foods, the “not to exceed” amount or the “valid period to redeem” has been changed or is missing.

Effective: 03/20/2006

R.C. 119.032 review dates: 11/08/2005 and 03/01/2011

Promulgated Under: 119.03

Statutory Authority: 3701.132

Rule Amplifies: 3701.132

Prior Effective Dates: 1/10/1992, 4/12/92, 4/1/94, 1/26/96, 6/7/99, 6/21/2004

(A) The department shall pay for a food instrument submitted by a vendor if all of the following conditions are met:

(1) The WIC transaction occurred during the “valid period to redeem,” as recorded on the food instrument;

(2) The vendor submitted the food instrument to the processing firm designated by the director and the processing firm received it within thirty days after the last day of the “valid period to redeem”;

(3) The amount of sale is recorded at the time of the transaction on the food instrument in the appropriate box;

(4) The participant or authorized alternate shopper signed the food instrument in the appropriate box;

(5) The date of the WIC transaction is recorded on the food instrument in the appropriate box;

(6) The authorized four-digit WIC vendor stamp number of the vendor location that transacted the food instrument is stamped in the appropriate box;

(7) The food instrument is completed in blue or black ink and does not contain any unauthorized alterations or corrections;

(8) The vendor properly and legibly executed, processed, and submitted all other required documents;

(9) The warrant is for an amount of more than two dollars; and

(10) The WIC transaction occurred during the valid contract period.

(B) If the conditions specified in paragraph (A) of this rule are met, the department shall pay the vendor the actual amount of sale or the not-to-exceed amount for each food instrument, whichever is lower, within sixty days after the receipt of all legible, properly executed and processed documents. The department shall make cost containment adjustments within sixty days of the initial payment.

(C) Notwithstanding paragraph (B) of this rule, the department may pay for a food instrument if:

(1) The vendor submitted the food instrument to the processing firm more than thirty days after the “valid period to redeem” has expired and the vendor justifies in writing and documents to the director’s satisfaction that the failure to meet the required deadline resulted from circumstances beyond the control of the vendor and its current and former employees. If the total value of such food instruments submitted at one time exceeds five hundred dollars, the department must obtain approval from the FNS regional office to pay for the food instruments.

(2) The vendor submitted the food instrument in which the actual amount of sale exceeds the “not to exceed” amount recorded on the food instrument, and the vendor justifies in writing and documents to the director’s satisfaction that the actual amount paid for the authorized supplemental food was greater than the “not to exceed” amount because of legitimate increases in the cost paid by the vendor for the authorized supplemental food. Documentation may include a copy of the wholesaler’s invoice or similar evidence.

(D) The department shall notify a vendor if it determines that it will not pay for a food instrument based on the failure to meet the conditions specified in paragraph (A) of this rule. The vendor may request reconsideration of the department’s determination not to pay for a food instrument. Any request for reconsideration must be in writing and must be post-marked within thirty days of the denied payment notification.

(E) The department may deny payment or initiate claims collection action within ninety days of either the date of detection of the vendor violation or the completion of the review or investigation giving rise to the claim, whichever is later. Claims collection action may include offset against current and subsequent amounts owed to the vendor.

(F) The department may delay payment to the vendor or establish a claim in the amount of the full purchase price of each food instrument that contained a vendor overcharge or other error. Such vendor violations may be detected through compliance investigations, food instrument reviews, or other reviews or investigations of vendor operations.

(G) Upon request by the department, a vendor shall refund to the department, within ninety days, any payments made to the vendor that later are found to be an overcharge, paid in error, or otherwise invalid because of noncompliance with paragraph (A) of this rule. At its option, the department may recover the invalid payments by withholding all or a portion of current or future payments due to the vendor. The department shall provide the vendor with notice of and an opportunity to respond to the department’s determination that a payment is invalid in the same manner as prescribed by paragraph (D) of this rule for a determination not to pay for a food instrument.

(H) Any payment for a food instrument made by the department pursuant to paragraph (A) to (C) of this rule does not waive the department’s right to refuse payment for another food instrument pursuant to paragraph (A) to (C) of this rule at any other time or to take action pursuant to rule 3701-42-08 of the Administrative Code.

Effective: 03/20/2006

R.C. 119.032 review dates: 11/08/2005 and 03/01/2011

Promulgated Under: 119.03

Statutory Authority: 3701.132

Rule Amplifies: 3701.132

Prior Effective Dates: 1/10/1992, 4/12/92, 4/1/94, 1/26/96, 6/7/99, 6/21/2004

(A) The director shall sanction vendors that abuse the WIC program. The vendor violations referenced in paragraphs (B) to (E) of this rule constitutes abuse of the WIC program. The director may sanction vendors for any vendor violation of this chapter that does not constitute abuse. The director does not have to provide the vendor with prior notice that violations were occurring before imposing any of the sanctions set forth in this rule, except that the director will provide the vendor with a notice that violations are occurring that may lead to mandatory sanctions under paragraphs (C)(2) or (D) of this rule prior to taking action, unless providing such notice compromises an investigation.

(B) The director shall terminate a contract and disqualify a vendor for a period of six years if the director finds that the vendor has exchanged food instruments for cash, firearms, ammunition, explosives, or controlled substances as defined in 21 U.S.C. 802.

(C) The director shall terminate a contract and disqualify a vendor for a period of three years if the director finds that the vendor has:

(1) Exchanged food instruments for alcohol or alcoholic beverages or tobacco products; or

(2) Engaged in a pattern of any of the following:

(a) Exchanging food instruments for credit, including rainchecks, or non-food items;

(b) Redeeming food instruments from WIC transactions for authorized supplemental foods not received by the participants or alternate shoppers;

(c) Redeeming food instruments in which the vendor charged participants or alternate shoppers more for the authorized supplemental foods than the vendor charged other customers or vendor charged more than the shelf price;

(d) Receiving, transacting, or redeeming food instruments outside of authorized channels, including seeking reimbursement from the department for a food instrument accepted by another person or location, whether or not authorized as a vendor in accordance with rule 3701-42-03 of the Administrative Code; or

(e) Claiming reimbursement for the sale of an amount of a specific authorized supplemental food, which exceeds the vendor’s documented inventory of that authorized supplemental food for a specific period of time.

(D) The director shall terminate a contract and disqualify a vendor for a period of one year if the director finds that the vendor has engaged in a pattern of providing unauthorized food items in exchange for food instruments, including charging for authorized supplemental foods provided in excess of those listed on the food instrument.

(E) The director shall terminate a contract and disqualify from the WIC program a vendor who has been disqualified from the FNS food stamp program. The disqualification from the WIC program shall be for the same length of time as the disqualification from the FNS food stamp program. The disqualification from the WIC program may begin at a later date than the food stamp program disqualification. The disqualification from the WIC program shall take effect on the date the vendor receives notice of disqualification from the WIC program.

(F) Prior to terminating a contract and imposing disqualification of a vendor pursuant to paragraphs (B) to (D) of this rule, the director shall consider whether the disqualification of the vendor would result in inadequate participant access. If the director determines that the disqualification would result in inadequate participant access, the director shall assess a civil money penalty in lieu of the disqualification. The amount of the civil money penalty shall be determined in accordance with paragraph (M) of this rule.

(G) The director shall double the second sanction when a vendor, that has been previously disqualified or assessed a civil money penalty pursuant to paragraphs (B) to (D) of this rule, receives another sanction pursuant to paragraphs (B) to (D) of this rule. A civil money penalty may only be doubled up to the limits allowed under paragraph (M) of this rule.

(H) The director shall double the third and subsequent sanctions when a vendor that has been previously assessed two or more sanctions pursuant to paragraphs (B) to (D) of this rule and receives another sanction pursuant to paragraphs (B) to (D) of this rule. The director shall not assess a civil money penalty in lieu of disqualification for third and subsequent sanctions pursuant to paragraphs (B) to (D) of this rule.

(I) Notwithstanding paragraph (B) of this rule, the director shall terminate a vendor contract and permanently disqualify from the WIC program a vendor that has been convicted in a court of law for trafficking in food instruments or selling firearms, ammunition, explosives, or controlled substances as defined in 21 U.S.C. 802, in exchange for food instruments.

(J) The director may terminate a contract and disqualify from the WIC program a vendor whose WIC sales exceed fifty percent of their gross food sales.

(K) The director may sanction a vendor that has committed one or more vendor violations of this chapter that do not constitute abuse by doing either of the following:

(1) Terminating a vendor contract and disqualifying the vendor from the WIC program for a period of not more than one year for one or more violations resulting from a single investigation; or

(2) Assessing a civil money penalty of not more than ten thousand dollars against the vendor for each violation, not to exceed forty thousand dollars for multiple violations during an investigation.

(L) The director may terminate a contract and disqualify from the WIC program a vendor that has been assessed a civil money penalty for hardship in the food stamp program, as provided under 7 C.F.R. 278.6. The length of such disqualification shall correspond to the period for which the vendor would otherwise have been disqualified from the FNS food stamp program. If the director determines that disqualification of the vendor would result in inadequate participant access, the director shall not disqualify the vendor nor impose a civil money penalty in lieu of disqualification. 3701-42-08 3

(M) The director shall use the following formula to calculate a civil money penalty imposed in lieu of disqualification pursuant to paragraph (F) of this rule:

(1) Determine the vendor’s average monthly redemptions for at least the six month period ending with the month immediately preceding the month during which the notice of administrative action is dated;

(2) Multiply the average monthly redemptions figure by ten percent; and

(3) Multiply the product from paragraph (M)(2) of this rule by the number of months for which the location would have been disqualified. This is the amount of the civil money penalty, provided that the civil money penalty shall not exceed ten thousand dollars for each violation. For a violation that warrants permanent disqualification, the amount of the civil money penalty shall be ten thousand dollars, except for those violations listed in paragraph (I) of this rule, where the civil money penalty shall be eleven thousand dollars for selling fire arms, ammunition, explosives, or controlled substances in exchange for food instruments. When during the course of a single investigation the director determines a vendor has committed multiple violations, the director shall impose a civil money penalty for each violation. The total amount of civil money penalties imposed for violations investigated as part of a single investigation shall not exceed forty thousand dollars, except for those violations listed in paragraph (I) of this rule, where the total amount of civil money penalties may not exceed forty-four thousand dollars for violations occurring during a single investigation for trafficking violations or for selling firearms, ammunition, explosives, or controlled substances in exchange for food instruments.

(N) In determining the period of disqualification to impose or amount of civil money penalty to assess a vendor pursuant to paragraph (M) of this rule, the director shall consider at least the following factors:

(1) The vendor’s compliance history;

(2) The severity or nature of the violation;

(3) The potential monetary loss to the WIC program caused by the violation, determined by reference to the amount of money involved in the violation and the vendor’s volume of WIC business.

(O) If a vendor does not pay, only partially pays, or fails to timely pay a civil money penalty assessed in lieu of disqualification, the director shall terminate the contract and disqualify the vendor for the length of the disqualification corresponding to the violation for which the civil money penalty was assessed. The director may withhold any current or future payments due to the vendor to offset any payment owed by the vendor to the department.

(P) The director may terminate a contract and disqualify a store vendor, for a period of not more than one year if the vendor submits for payment less than the average of one hundred and twenty coupons per month per vendor location for any designated one year period during the contract.

(Q) The director may terminate a contract and disqualify a pharmacy vendor for a period of not more than one year if the pharmacy submits for payment less than the average of ten coupons per month per pharmacy location for any designated one year period during the contract.

(R) The director shall refer a vendor that is disqualified from participating in the WIC program or assessed a civil money penalty in lieu of disqualification from the WIC program to FNS for possible disqualification from participation in the food stamp program. The director shall refer a vendor that abuses the WIC program to federal, state, or local authorities for criminal prosecution under applicable statutes, where appropriate.

(S) The director shall not accept a vendor’s voluntary withdrawal or non-renewal of the contract as an alternative to disqualification when the director is required or has started the process to disqualify the vendor pursuant to this rule. Even if the vendor attempts to voluntarily withdraw or does not renew the contract in lieu of disqualification the director shall enter the disqualification on the record.

(T) Except for permanent disqualification pursuant to paragraph (J) of this rule, a vendor that has been disqualified from the WIC program may apply for a new retail vendor contract in accordance with rule 3701-42-03 of the Administrative Code after the period of disqualification has expired.

Effective: 03/20/2006

R.C. 119.032 review dates: 11/08/2005 and 03/01/2011

Promulgated Under: 119.03

Statutory Authority: 3701.132

Rule Amplifies: 3701.132

Prior Effective Dates: 1/10/1992, 4/12/92, 4/1/94, 1/26/96, 6/7/99, 6/21/2004

(A) This rule prescribes the rights to administrative review of a WIC applicant or WIC retail vendor that is subject to adverse action under this chapter of the Administrative Code.

(1) Except as provided under paragraphs (A)(2) and (A)(3) of this rule, a WIC retail vendor or applicant may request an administrative review of the following:

(a) Denial of a vendor application pursuant to rule 3701-42-03 of the Administrative Code;

(b) Assessment of a civil money penalty pursuant to rule 3701-42-08 of the Administrative Code; and

(c) Termination of a vendor contract pursuant to rule 3701-42-08 of the Administrative Code;

(2) A WIC retail vendor or applicant may request an abbreviated review of the following:

(a) Denial of a vendor application based on a finding that applicant or vendor lacks business integrity as required by paragraph (D)(10) of rule 3701-42-03 of the Administrative Code;

(b) Denial of a vendor application based on a finding that applicant or vendor is not authorized to participate in the FNS food stamp program as required by paragraph (D)(1)(c) of rule 3701-42-03 of the Administrative Code or withdrew from or no longer participates in the FNS food stamp program as required by paragraph (D)(6) of rule 3701-42-03 of the Administrative Code;

(c) Denial of a vendor application because the approval would exceed the maximum number of locations for the county, as determined in accordance with paragraph (E) of rule 3701-42-03 of the Administrative Code;

(d) Denial of a vendor application that was submitted outside of the timeframes during which applications are to be submitted as set forth in paragraph (B) of rule 3701-42-03 of the Administrative Code;

(e) Denial of a vendor application based only on a finding that the applicant or vendor had gross food sales of which, fifty per cent or greater were derived from WIC sales.

(f) Termination of a contract based on a finding that there was a sale, assignment, or transfer of the contract or a change of ownership or operation under paragraphs (D) and (E) of rule 3701-42-04 of the Administrative Code;

(g) Disqualification based on a finding that the applicant or vendor was disqualified from the FNS food stamp program for a trafficking conviction under paragraph (I) of rule 3701-42-08 of the Administrative Code;

(h) Disqualification based on a finding that the applicant or vendor was assessed a civil money penalty for hardship by the food stamp program; and

(i) Disqualification based on a finding that the applicant or vendor was assessed a civil money penalty for a mandatory sanction imposed by another state’s WIC agency;

(3) A WIC retail vendor or applicant does not have the right to administrative, abbreviated or judicial review for the following:

(a) Expiration of a contract;

(b) Amendments to the contract made pursuant to paragraph (C) of rule 3701-42-04 of the Administrative Code;

(c) The director’s determination regarding participant access;

(d) The director’s denial of an application for a contract under paragraph (G) of rule 3701-42-03 of the Administrative Code; or

(e) Termination of a vendor contract pursuant to paragraph (G) of rule 3701-42-04 of the Administrative Code;

As used in this rule, “affected party” means anyone entitled to an administrative or abbreviated review under this rule.

(B) For any adverse action taken against a vendor or vendor applicant, the director shall provide the affected party with written notification of the adverse action, the causes for the action, and the effective date of the action. Except as otherwise provided in this chapter of the Administrative Code, notification shall be provided at least fifteen days before the effective date of the action. For any action in which the applicant or WIC retail vendor may request an administrative or abbreviated review under paragraphs (A)(1) and (A)(2) of this rule, the written notification shall be mailed in accordance with the following requirements:

(1) The notification required by paragraph (B) of this rule shall be provided by certified mail, return receipt requested, or by hand-delivery. If the notification is returned because of failure of delivery, the director shall send the notification by regular mail to the primary location listed on the application for WIC program authorization. In such a case, the notification shall be deemed to have been received on the third day after it is mailed.

(2) The notification shall state that the affected party may obtain administrative review or abbreviated review, whichever is applicable, under this rule if the request is mailed to the department and received within fifteen days after the affected party receives or is deemed to have received the notification. The notification also shall list the address to which a request for administrative or abbreviated review shall be sent or delivered.

(C) The affected party may request an administrative or abbreviated review on an adverse action by sending a written request for review to the address specified in the notification required under paragraph (B)(2) of this rule. The request for administrative or abbreviated review must be received by the department within fifteen days after the affected party receives or is deemed to have received the notification of the adverse action. Upon receiving a timely request for administrative review, the director shall schedule the administrative review to be held before an impartial decision maker selected by the director.

(1) The impartial decision maker shall be licensed to practice law in Ohio and shall not have participated in any manner in the decision to take the adverse action against the affected party.

(2) The director shall mail or deliver notice of the date, time, and place of the administrative review to the affected party not less than ten days before the scheduled date.

(3) The affected party and the director each shall have one opportunity to reschedule the hearing date upon specific request to the impartial decision maker. Any other postponements shall be by agreement of the director, the affected party, and the impartial decision maker. If the postponement will prevent the decision from being issued within the ninety-day period required by paragraph (H) of this rule, the impartial decision maker shall deny the postponement unless the affected party waives its right to a decision within that period.

(D) A disqualification from the WIC program shall take effect on the effective date specified by the director in the notification issued under paragraph (B) of this rule regardless of the pendency of an administrative or abbreviated review under this rule. If a contract expires before the completion of the administrative or abbreviated review or the issuance of the decision under this rule, the decision shall apply to any contract that has been executed since the date of the notification issued under paragraph (B) of this rule.

(E) The director may issue subpoenas to compel the attendance of witnesses or the production of documents at the administrative review. Any such subpoenas shall be served in the manner prescribed by the “Ohio Rules of Civil Procedure.” The director shall issue subpoenas upon request by the affected party if the request is received by the director no fewer than seven days before the date set for the hearing.

(F) At an administrative review, the affected party shall have the opportunity to present its case orally or in writing and to confront and cross-examine adverse witnesses. The affected person shall have the opportunity to be represented by counsel, if desired, and shall have the opportunity to review the case record before the administrative review. The affected party must be represented by an attorney licensed to practice law in Ohio if the affected party is a corporation or a limited liability company.

(G) For an abbreviated review, the affected party shall have the opportunity to submit a written response to the director’s notification of adverse action. The written response must be received by the department within fifteen days after the affected person receives or is deemed to have received the notification. The written response shall be reviewed by an individual designated by the director, who shall not have rendered the initial decision on the action, and whose determination is based solely on whether the director correctly applied federal or state statutes, regulations, rules, policies and procedures governing the WIC program, according to information provided to the vendor concerning the causes for the adverse action and the affected party’s response.

(H) The impartial decision maker of an administrative review or the director’s designee of an abbreviated review shall prepare a written decision as to the validity of the director’s action, which shall rest solely on the evidence presented for the review and the statutory and regulatory provisions governing the WIC program. The impartial decision maker or director’s designee, whichever is applicable, shall describe the basis for his or her decision, but need not prepare a full opinion or formal findings of fact and conclusions of law. The impartial decision maker or director’s designee, whichever is applicable shall mail by certified mail, return receipt requested, or hand deliver the decision to the affected party and the director no more than ninety days after the date on which the department received the request for the review, unless the affected party has waived the right to receive a decision within ninety days as provided in paragraph (C)(3) of this rule. The decision of the impartial decision maker or the director’s designee, whichever is applicable, shall be final and not subject to further administrative proceedings.

(I) The ninety day timeframe provided in paragraph (H) of this rule is only for administrative purposes and does not provide a basis for overturning the decision if a decision is not made within the specified timeframe.

Effective: 03/20/2006

R.C. 119.032 review dates: 11/08/2005 and 03/01/2011

Promulgated Under: 119.03

Statutory Authority: 3701.132

Rule Amplifies: 3701.132

Prior Effective Dates: 1/10/1992, 4/12/92, 4/1/94, 1/26/96, 6/7/99, 6/21/2004

(A) Any individual who owns or operates a farm stand or participates at farmers’ markets may apply to the director for authorization to be a WIC farmer in accordance with this rule. Individuals who exclusively sell produce grown by someone else, such as a wholesale distributor, cannot be authorized for a WIC contract. The director shall authorize applicants by entering into contracts in accordance with the criteria established under this rule. The contracts shall be for terms of no more than three years. Unless otherwise provided in this rule, the contract beginning date shall be the first of June.

(B) To apply for a farmer contract, an applicant shall complete an application packet on forms prescribed by the director. The applicant shall deliver the completed application to the director by hand-delivery, U.S. mail, or overnight mail at the address indicated on the application form. It is the applicant’s responsibility to obtain documentation of the director’s timely receipt of the application.

(1) The completed application must be postmarked or received by the director no later than the first of February of the year for which the applicant is applying. If an application is received on or before the first of February, but the application is not complete, the director may request additional information to make the application complete or accurate. The additional information must be postmarked of received by the director no later than the first of April. If the application is not received by the first of April, the application shall be denied.

(2) Notwithstanding the application submission requirements set forth in paragraph (B)(1) of this rule, the director may approve a contract to add a farm stand or farmers’ market site to an existing farmer contract if the farmer is in good standing with the WIC program and has not been denied a contract for the proposed site within the previous twelve months.

(C) The director shall enter into a contract with an applicant if the applicant meets all of the following criteria:

(1) The applicant has truthfully, accurately, and fully completed, signed, and timely submitted to the department an application for a contract, including the following additional documentation:

(a) Sufficient IRS documentation of his or her current federal employer identification number, if applicable. Sufficient documentation shall include a current United States internal revenue service (IRS) deposit coupon, completed IRS form W-9, letter or mailing label that contains both the IRS insignia and the applicant’s federal employer identification number;

(b) Properly completed EFT form with a copy of a voided check or deposit form; and

(c) Any other documentation requested by the department.

(2) The applicant or representatives of the applicant shall attend a farmer training session at the time and place set by the department or local WIC agency.

(3) The applicant is in compliance with rule 3701-42-05 of the Administrative Code.

(4) The applicant has paid in full or is current in payment of any money owed to the department.

(5) The applicant is not currently under disqualification from the WIC program, farmers’ market nutrition program, or FNS food stamp program.

(6) Upon request by the director, the applicant provides proof of any necessary local license, other regulatory approval to operate at each site specified in the application, or other documents to substantiate compliance with this rule. The director, at his or her discretion, may at any time require from any applicant or farmer additional documentation.

(7) Entering into a contract will not create a conflict of interest as defined by applicable state laws, regulations, and policies between the farmer and the WIC program or its local agencies.

(D) The director may deny an application if the applicant has provided false information in connection with its application for authorization.

(E) Except as otherwise provided in this rule, the director shall deny an application for authorization if any of the criteria specified in paragraph (C) of this rule are not met.

(F) At the director’s discretion, he or she may require a farmer to accommodate an electronic transaction system which may include point of sale devises and scanners at each site capable of serving WIC participants. A farmer shall be notified at least sixty days before the effective date of this requirement. The director shall terminate a farmer’s contract if the farmer fails to comply with this requirement.

(G) The contract does not become effective until signed by the applicant, farmer, or other authorized representative and the director.

(H) Farmer applicants may apply for a contract to be effective October 1, 2009 through May 31, 2010, by submitting an application by August 1, 2009. The Director shall enter into a contract with applicants who meet the criteria set forth in paragraph (C) of this rule.

Effective: 10/01/2009

R.C. 119.032 review dates: 10/01/2014

Promulgated Under: 119.03

Statutory Authority: 3701.132

Rule Amplifies: 3701.132

(A) An applicant is not authorized to act as a WIC farmer without a valid contract executed pursuant to paragraph (A) of rule 3701-42-10 of the Administrative Code. Farmers whose contracts have expired and applicants who have not yet received authorization from the director shall not accept fruit and vegetable vouchers from participants or alternate shoppers. The department will not reimburse a farmer for transactions that occurred after the contract expires or before a contract becomes effective.

(B) A farmer contract shall conform with the provisions of 7 C.F.R. 246.12(v) (in effect on February 4, 2008) and the applicable provisions of this chapter of the Administrative Code. The contract shall list all sites in which the farmer is authorized to accept vouchers.

(C) The director may amend the contract at any time to include or incorporate additional provisions that are required because of changes in federal or state statute, regulation, or rule or to improve the administration, operation, or evaluation of the program. The director shall notify farmers of any such amendments at least thirty days in advance of their effective date. A farmer may accept the amendments or may terminate the contract voluntarily as provided in paragraph (F) of this rule. A farmer that does not voluntarily terminate the amended contract after receiving notification under this paragraph is deemed to have accepted the amendments. A farmer may not appeal amendments to the contract.

(D) A contract is not assignable or transferable. A farmer shall not sell, assign, or transfer in any manner his or her rights under the contract. Any actual or attempted sale, assignment, or transfer of a contract shall render the contract void. The department will not reimburse the farmer for transactions that occurred on or after the date the contract was rendered void.

(E) A farmer or farmer’s authorized representative, which may include the purchaser or operator of the farmer, shall notify the department in writing, at least fifteen days before any scheduled change of ownership or operation, including, but not limited to a sale, lease, transfer, bankruptcy, dissolution, or cessation of business, or within thirty days after such event, if not scheduled. A “change of ownership or operation” also includes the death of a sole proprietor or the transfer of a controlling interest in, or voluntary or involuntary dissolution of, a farmer that is a corporation. The farmer shall cease accepting vouchers immediately upon the effective date of a change of ownership or operation unless otherwise authorized by the director in writing. Upon notice or other information that an authorized site is the subject of a change of ownership or operation, the director shall terminate the farmer contract and shall not reimburse farmer for transactions that occurred on or after the date of change of ownership or operation.

(F) A farmer may voluntarily terminate the contract for any reason. The farmer shall notify the department in writing, at least fifteen days prior to the effective date of termination.

(1) If the farmer owes the department any outstanding payment, he or she shall pay the amount due in full before the effective date of termination. The department may obtain the amount due by withholding current or future payments that otherwise would be due to the farmer.

(2) Voluntary termination by a farmer shall not affect any action by the director to disqualify or otherwise sanction the farmer pursuant to rule 3701-42-14 of the Administrative Code, or to deny authorization pursuant to rule 3701-42-10 of the Administrative Code.

(G) The director may terminate the contract if state or federal funds are not appropriated or otherwise become unavailable. The director shall notify the farmer in writing, by certified mail, return receipt requested, at least fifteen days before the effective date of the termination.

(H) The director may terminate a contract if he or she determines that the farmer provided false information in connection with an application for authorization.

Effective: 10/01/2009

R.C. 119.032 review dates: 10/01/2014

Promulgated Under: 119.03

Statutory Authority: 3701.132

Rule Amplifies: 3701.132

(A) In addition to the requirements specified by rule 3701-42-10 of the Administrative Code, a farmer shall comply with the requirements set forth in this rule.

(B) A farmer shall provide to participants and alternate shoppers only authorized fruits and vegetables in exchange for valid vouchers.

(C) A farmer shall offer participants and alternate shoppers the same courtesies as extended to other customers including allowing the freedom to select among authorized fruits and vegetables.

(D) In transacting the fruit and vegetable voucher a farmer shall:

(1) Accept a voucher on which the participant’s name, the cash value amount, or the valid period to redeem has not been changed or is missing;

(2) Accept a voucher only within the valid period to redeem indicated on the voucher presented by a participant or alternate shopper;

(3) Accept a voucher only after requiring the bearer of the voucher to present a valid Ohio WIC program ID card;

(4) Deduct any discounts offered from the total before recording the actual amount of sale on the voucher;

(5) Complete the voucher in blue or black ink at the time of the transaction;

(6) Total and record the prices of the selected fruits and vegetables in the appropriate block on the front of the voucher;

(7) Total and record the prices of the selected fruits and vegetables in the appropriate block on the front of the voucher at the time of the transaction;

(8) Record the transaction date in the appropriate block on the front of the voucher at the time of the transaction;

(9) Obtain the signature of the participant or alternate shopper on the voucher and compare the signature to the signature of the participant or alternate shopper listed on the Ohio WIC program ID card at the time of the transaction;

(10) Be responsible for all vouchers accepted or processed for payment by current and former employees or agents of the farmer including any person or persons operating or employed at the farm stand or farmers’ market. The farmer shall be responsible for the accuracy of any information submitted to the department by those employees or agents;

(11) Stamp the four-digit number on each voucher in the appropriate block before submitting for payment;

(12) Review all vouchers that were accepted to verify that the actual amount of sale is not more than the marked or posted prices or more than the prices charged to other customers;

(13) Return to the department or local agency within forty-eight hours any vouchers obtained not in the ordinary course of business, or if a farmer determines that the transaction was not in accordance with this chapter. If the farmer does not intend to submit the voucher for payment, but rather to return it to the department or local agency, the farmer shall mark “void” on the voucher; and

(14) Submit vouchers to the designated processing firm within 30 days of the last day of the valid period to redeem.

(E) A farmer shall comply with all of the following:

(1) All federal and state laws, rules, and regulations governing the WIC program, including section 17 of the “Child Nutrition Act of 1966,” 42 U.S.C.A. 1786 (in effect January 2, 2006), and pertinent federal regulations for the WIC program, including 7 C.F.R. part 246 (in effect February 4, 2008);

(2) All federal and state laws pertaining to nondiscrimination, including but not limited to Title VI of the “Civil Rights Act of 1964,” 42 U.S.C.A. 2000d (in effect January 2, 2006), and pertinent regulations adopted thereunder and 7 C.F.R. parts 15, 15a, and 15b (in effect January 1, 2008); and

(3) All federal, state, and local criminal laws, either felony or misdemeanor, pertaining to the WIC program or any other FNS program.

(F) The department or local agency or its designee may conduct announced and unannounced inspections of a farmer’s or applicant’s site at any time. The farmer or applicant and its employees and agents shall cooperate with the department or local agency or its designee conducting an inspection and shall provide access to records pertinent to the program, including transactions, pricing information, and inventory records. The department or local agency or its designee may confiscate improperly accepted vouchers.

(G) A farmer shall be subject to audit by the department and FNS for the time period covering any present or previous authorization.

(1) A farmer shall maintain records of purchases, gross sales receipts, and invoices, as applicable, for authorized fruits and vegetables for a period of not less than three years after the end of the federal fiscal year, and upon request, shall make available the records to the department and FNS. If any litigation, claim, negotiation, audit, or other action involving the records has begun during the three-year period, the farmer shall keep the records until all issues are resolved.

(2) Upon request, a farmer also shall make available to the department and FNS all vouchers that are stored at any of its sites or that are otherwise under the farmer’s control.

(H) A farmer shall respond in writing within fifteen calendar days after receiving the department’s request for verification of ownership of the business entity or site.

(I) A farmer shall send one or more representatives from each site to all required training sessions scheduled by the local agency or the department. A farmer shall inform and train cashiers, other employees, and agents on farmer program requirements.

(J) A farmer shall maintain the appropriate notice of authorization issued by the department or local agency.

(K) A farmer shall not:

(1) Exchange vouchers for cash, firearms, ammunition, explosives, or controlled substances as defined in 21 U.S.C. 802 (in effect on January 2, 2006), alcohol or alcoholic beverages or tobacco products, or credit, including rainchecks, or other item that is not an authorized fruit or vegetable;

(2) Provide the participant or alternate shopper with any monetary change when the purchase is less than the value of the voucher;

(3) Require a participant or alternate shopper to exchange his or her selection of authorized supplemental fruits and vegetables. The farmer may request that the participant or alternate shopper pay the difference when the purchase price exceeds that of the cash value of the voucher;

(4) Redeem vouchers for authorized supplemental fruits and vegetables not received by the participants or alternate shoppers;

(5) Redeem vouchers in which the farmer charged participants or alternate shoppers more than the posted price or more than the farmer charged other customers; and

(6) Except as authorized in paragraph (L)(3) of this rule, seek restitution from a participant or alternate shopper for the cash amount of a voucher not paid or partially paid by the department;

(7) Charge sales tax on the voucher;

(8) Receive, transact, redeem, or seek reimbursement from the department for a voucher accepted by another person or site, whether or not authorized as a farmer;

(9) Redeem a voucher for unauthorized items; and

(10) Accept a voucher on which the participant’s name, the cash value amount, or the valid period to redeem has been changed or is missing.

Effective: 10/01/2009

R.C. 119.032 review dates: 10/01/2014

Promulgated Under: 119.03

Statutory Authority: 3701.132

Rule Amplifies: 3701.132

(A) The department shall pay for a fruit and vegetable voucher submitted by a farmer if all of the following conditions are met:

(1) The WIC transaction occurred during the valid period to redeem, as recorded on the voucher;

(2) The farmer submitted the voucher to the designated processing firm designated by the director and the processing firm received it within thirty days after the last day of the valid period to redeem;

(3) The amount of sale is recorded in the appropriate box at the time of the WIC transaction on the voucher;

(4) The participant or authorized alternate shopper signed the voucher in the appropriate box;

(5) The date of the WIC transaction is recorded in the appropriate box on the voucher;

(6) The authorized four-digit stamp number of the farmer site that transacted the voucher is stamped in the appropriate box;

(7) The voucher is completed in blue or black ink and does not contain any unauthorized alterations or corrections;

(8) The farmer properly and legibly executed, processed, and submitted all other required documents;

(9) The warrant is for an amount of more than two dollars; and

(10) The WIC transaction occurred during the valid contract period.

(B) If the conditions specified in paragraph (A) of this rule are met, the department shall pay the farmer the amount of the voucher or the amount recorded on the voucher, whichever is lower, within sixty days after the receipt of all legible, properly executed, and processed documents.

(C) Notwithstanding paragraph (B) of this rule, the department may pay for a voucher if, the farmer submitted a voucher to the designated processing firm more than thirty days after the valid period to redeem has expired and the farmer justifies in writing and documents to the director’s satisfaction that the failure to meet the required deadline resulted from circumstances beyond the control of the farmer and their current and former employees. If the total value of the vouchers submitted at one time exceeds five hundred dollars, the department must obtain approval from the FNS regional office to pay for the vouchers.

(D) The department shall notify a farmer if it determines that it will not pay for a voucher based on the failure to meet the conditions specified in paragraph (A) of this rule. The farmer may request reconsideration of the department’s determination not to pay for a voucher. Any request for reconsideration must be in writing and must be post-marked within thirty days of the denied payment notification.

(E) The department may deny payment or initiate claims collection action within ninety days of either the date of detection of the violation or the completion of the review or investigation giving rise to the claim, whichever is later. Claims collection action may include offset against current and subsequent amounts owed to the farmer.

(F) The department may delay payment to the farmer or establish a claim in the amount of the full purchase price of each voucher that contained an overcharge or other error. Such violations may be detected through compliance investigations, voucher reviews, or other reviews or investigations of farmer operations.

(G) Upon the department’s request, a farmer shall refund to the department, within ninety days, any payments made to the farmer that later are found to be an overcharge, paid in error, or otherwise invalid because of noncompliance with paragraph (A) of this rule. At its option, the department may recover the invalid payments by withholding all or a portion of current or future payments due to the farmer. The department shall provide the farmer with notice of and an opportunity to respond to the department’s determination that a payment is invalid in the same manner as prescribed by paragraph (D) of this rule for a determination not to pay for a voucher.

(H) Any payment for a voucher made by the department pursuant to paragraph (A) to (C) of this rule does not waive the department’s right to refuse payment for other vouchers pursuant to paragraph (A) to (C) of this rule at any other time or to take action pursuant to rule 3701-42-14 of the Administrative Code.

Effective: 10/01/2009

R.C. 119.032 review dates: 10/01/2014

Promulgated Under: 119.03

Statutory Authority: 3701.132

Rule Amplifies: 3701.132

(A) The director shall terminate a contract and disqualify a farmer in accordance with the following reasons set forth in this paragraph. The director will provide the farmer with a notice letter that violations are occurring that may lead to mandatory sanctions under paragraphs (A) (2) (b) to (A) (3) of this rule. The notice letter will be provided to the farmer after an initial finding and prior to taking further action, unless providing such notice compromises an investigation.

(1) The director shall terminate a contract and disqualify a farmer for a period of six years if the director finds that the farmer has exchanged food instruments or vouchers for cash, firearms, ammunition, explosives, or controlled substances as defined in 21 U.S.C. 802 (in effect of January 2, 2006).

(2) The director shall terminate a contract and disqualify a farmer for a period of three years if he or she finds that the farmer has:

(a) Exchanged food instruments or vouchers for alcohol or alcoholic beverages or tobacco products;

(b) Exchanged in a pattern of any of the following:

(i) Exchanging food instruments or vouchers for credit, including rainchecks, or non-food items;

(ii) Redeeming food instruments or vouchers from WIC transactions for authorized supplemental foods not received by the participants or alternate shoppers;

(iii) Redeeming food instruments or vouchers in which the farmer charged participants or alternate shoppers more for the authorized supplemental foods than the farmer charged other customers or farmer charged more than the posted prices; or

(iv) Receiving, transacting, or redeeming food instruments or vouchers outside of authorized channels, including seeking reimbursement from the department for a voucher accepted by another person or site, whether authorized as a farmer in accordance with rule 3701-42-12 of the Administrative Code.

(3) The director shall terminate a contract and disqualify a farmer for a period of one year if he or she finds that the farmer has engaged in a pattern of providing unauthorized food items in exchange for food instruments or vouchers.

(B) The director shall terminate a contract and disqualify a farmer who has been disqualified from the FNS food stamp or farmers’ market nutrition program. The disqualification shall be for the same length of time as the disqualification from the FNS food stamp or farmers’ market nutrition program. The disqualification from the WIC program may begin at a later date than the food stamp or farmers’ market nutrition program disqualification. The disqualification from the WIC program shall take effect on the date the farmer receives notice of disqualification from the WIC program.

(C) Notwithstanding paragraph (A) of this rule, the director shall terminate a farmer contract and permanently disqualify from the WIC program a farmer that has been convicted in a court of law for trafficking in food instruments or vouchers or selling firearms, ammunition, explosives, or controlled substances as defined in 21 U.S.C. 802, (in effect on January 2, 2006) in exchange for food instruments or vouchers.

(D) The director may terminate a contract and disqualify a farmer from the WIC program for a period of not more than one year for one or more farmer violations resulting from an investigation.

(E) The director shall notify FNS of a farmer that is disqualified from the WIC program.

(F) The director shall not accept a farmer’s voluntary withdrawal or non-renewal of the contract as an alternative to disqualification when the director is required or has started the process to disqualify the farmer pursuant to this rule. Even if the farmer attempts to voluntarily withdraw or does not renew the contract in lieu of disqualification, the director shall enter the disqualification on the record.

(G) A farmer, whose contract has been terminated and who has been disqualified from the WIC program, may request an administrative review in accordance with rule 3701-42-09 of the Administrative Code. Upon timely request for an administrative review, the department shall provide the farmer with an administrative review in accordance with the requirements set forth in rule 3701-42-09 of the Administrative Code.

(H) A farmer that has been disqualified from the WIC program may apply for a new contract in accordance with rule 3701-42-10 of the Administrative Code after the period of disqualification has expired.

(I) A farmer who commits fraud or engages in other illegal activity is subject to prosecution under applicable federal, state, or local laws.

Effective: 10/01/2009

R.C. 119.032 review dates: 10/01/2014

Promulgated Under: 119.03

Statutory Authority: 2133.25

Rule Amplifies: 2133.26