Chapter 3701-42 WIC Program

3701-42-01 Definitions.

As used in this chapter:

(A) "Acknowledgment file" means the file that notifies the vendor if its claim file was accepted or rejected with errors.

(B) "Applicant" means a sole proprietorship, partnership, cooperative association, corporation, limited liability company or other business entity that timely submits to the director an application packet on forms prescribed by the director to be a WIC vendor. A currently authorized vendor will be designated as an applicant for the contracting process. Responsibilities related to the current contract, if there is one, will remain in effect.

(C) "Authorized Products List (APL)" means an electronic file of all WIC authorized food items. Each food item in the APL is uniquely identified by a specific category, sub-category, description, unit of measure and Universal Product Code (UPC) or Price Lookup Code (PLU).

(D) "Authorized supplemental foods or authorized foods" means those items, as listed on the WIC authorized products list developed 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 benefits contained on the WIC nutrition card .

(E) "Auto-reconciliation file" means the file which provides the vendor details for transactions that were processed by the State host.

(F) "Cash value benefit (CVB)" means cash amount on the WIC nutrition card that may be used by a participant to obtained authorized fruits and vegetables.

(G) "Contract" means a written agreement between the department and an authorized vendor in which the vendor agrees to transact the WIC nutrition card in accordance with the provisions of this chapter.

(H) "Contract infant formula or contract formula" mean all infant formulas produced by the manufacturer awarded the infant formula cost containment contract. This also refers to the soy-based infant formula included in the cost containment contract.

(I) "Department" means the Ohio department of health.

(J) "Director" means the director of health or designee.

(K) "EBT" means electronic benefits transfer.

(L) "EFT" means electronic funds transfer whereby payment is made and deposited electronically into a specified account of a vendor at a financial institution (M) "Food and nutrition service" (FNS) means the office within the United States department of agriculture responsible for the overall administration of the food assistance program and WIC.

(N) "Food assistance program" means a program administered by the Ohio department of job and family services to raise nutritional levels, expand buying power and to safeguard the health and well-being of individuals in low-income households in Ohio. It was formerly known as "Food Stamps" and is also currently referred to as the "Supplemental Nutrition Assistance Program" or "SNAP."

(O) "Food sales" means sale of all foods that are eligible items under the food assistance program.

(P) "Cash value benefit" that may be used by a participant to obtain authorized fruits and vegetables. "Host" means the centrally located state computing system used to process WIC EBT transactions.

(Q) "Hot Card List (HCL)" means a list of WIC Nutrition Cards by primary account numbers (PAN) which are no longer valid.

(R) "Infant formula supplier" means a supplier included on the list of authorized infant formula suppliers pursuant to paragraph (A) of rule 3701-42-05 of the Administrative Code.

(S) "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.

(T) "Location" means a fixed and permanent site operating as a grocery store .

(U) "Mixed basket" means the ability of the WIC participant to purchase both WIC authorized foods and non-WIC foods without separating the food items prior to checkout into two separate transactions.

(V) "Not to exceed amount" is the maximum amount the department will reimburse a vendor for an authorized WIC food item.

(W) "Participant" means a pregnant, postpartum, or breastfeeding woman, or an infant or child who is receiving authorized foods.

(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.

(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.

(X) "Participant access" means the ability of participants to procure authorized foods without undue hardship.

(Y) "Pattern" means three or more occurrences.

(Z) "Pharmacy or pharmacy vendor" means a sole proprietorship, partnership, cooperative association, corporation, limited liability company, or other business entity that operates one or more pharmacies authorized by the director to provide authorized prescribed infant formula under a contract executed in accordance with 3701-42-10 of the Administrative Code. Each pharmacy location must have on staff an individual licensed and authorized under Chapter 4729. of the Revised Code to be a pharmacist.

(AA) "Price Lookup Code (PLU)" means a unique identifier used by a vendor to identify products that typically are of variable measure (i.e., fresh fruits and vegetables).

(BB) "Price survey" means the collection of prices for selected authorized foods required with the application.

(CC) "Primary Account Number (PAN)" means a number assigned to a WIC nutrition card as a unique identifier.

(DD) "Processing Day" means the day on which transactions and/or files are processed; excludes holidays and weekend days.

(EE) "Prescribed infant formula" means an infant formula exempt from the infant formula rebate contract as defined in 7 C.F.R. section 246.2 (in effect on January 1, 2011 ). Prescribed infant formula requires a physician's prescription.

(FF) "Split tender" means a transaction that allows the participant to use the fruit and vegetable benefits on the WIC nutrition card in addition to using one or more additional methods of payment if the purchase exceeds the value of the fruit and vegetable benefit on the card.

(GG) "Time of application" means the date the applicant mails the application for a contract, as evidenced by the postmark, or the date the application for a contract is received by the director. .

(HH) "Universal Product Code (UPC)" means a specific code used to identify products sold by the vendor.

(II) "Survey" means collect a vendor's price for selected authorized supplemental foods. "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.

(JJ) "WIC EBT claim file or claim file" means the electronic file that contains transactions being submitted for payment by the vendor.

(KK) "WIC nutrition card (WNC)" means the smartcard containing participant benefits.

(LL) "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. 1786, (in effect on January 7, 2011 ) and administered in Ohio by the department under section 3701.132 of the Revised Code.

(MM) "WIC 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 authorized by the director to provide authorized foods to participants under a contract executed under paragraph (A) of rule 3701-42-03 of the Administrative Code. Each store must have a single, fixed location.

(NN) "WIC transaction or transaction" means the process by which a valid WIC nutrition card is presented to personnel at an authorized vendor to receive items selected from the list of authorized foods.

Replaces: 3701-42-01

Effective: 9/16/2016
Five Year Review (FYR) Dates: 09/15/2021
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, 10/1/09, 4/1/11

3701-42-02 Food delivery system.

(A) For purposes of providing authorized foods to participants, the director may operate any FNS approved food delivery system considered appropriate. The director currently implements a retail food delivery system as follows:

(1) Contracts with vendors to provide authorized foods in exchange for benefits on the WIC nutrition card; and

(2) Contracts with pharmacy vendors to provide prescribed infant formula in exchange for benefits on the WIC nutrition card.

(B) The director may also contract with a distribution center to provide prescribed infant formula.

Replaces: 3701-42-02

Effective: 9/16/2016
Five Year Review (FYR) Dates: 09/15/2021
Promulgated Under: 119.03
Statutory Authority: 3701.132
Rule Amplifies: 3701.132
Prior Effective Dates: 1/10/1992 (Emer.), 4/12/92, 1/26/96, 6/7/99, 6/21/04, 3/20/06, 4/1/11

3701-42-03 WIC vendor authorization.

(A) The director shall authorize an applicant to be a vendor by entering into a contract with an applicant that meets the criteria established under this rule. The contract shall be for a term of no more than three years. Unless otherwise provided in this rule, the contract beginning date shall be consistent with paragraph (C) of this rule Any sole proprietorship, partnership, cooperative association, corporation, limited liability company, or other business entity that owns and operates a grocery store may apply to the director for authorization in accordance with 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. It is the applicant's responsibility to obtain documentation of the date of mailing of the application and/or of the director's timely receipt of the application.

(1) A complete application 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. Except as provided in paragraph (B)(2) of this rule, if any part of the 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 be deemed incomplete and denied.

(2) If an application, which is complete except for verification of food assistance program authorization, is received by the director within the time period in paragraph (B)(1) of this rule, and the applicant has a food assistance program application pending, the director may consider the application for approval once verification of food assistance program authorization is received even if received after the contract beginning date in paragraph (C) of this rule.

(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 complies with all other requirements of the rule. The applicant may not transact or accept WIC nutrition card benefits until notified that the location is an authorized vendor.

(4) Notwithstanding the application submission requirements set forth in paragraphs (B)(1) and (C) of this rule, the director may approve a contract under any of the three conditions set forth in this paragraph. The contract beginning date shall be the date the contract is signed by the director, and shall expire at 11:59 p.m. 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 food assistance programs may apply at any time to add a location to an existing contract if the proposed location is under the same tax identification number or primary entity 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 grocery 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 and the director determines the purpose of the sale was not to circumvent a WIC sanction.

(c) An applicant who establishes a business operation within the last twelve months, and has not been denied a contract during that time, but misses the application deadline for that business location's region may request and submit an application during the next available scheduled application contract period as set forth in paragraph (B)(5) of this rule. The director shall enter into a contract with the applicant if the application is received timely as set forth in paragraph (B)(1) of this rule, and meets all contracting criteria as set forth in paragraph (D) of this rule, and the addition of the business location will not exceed the maximum vendor locations for the state, as determined in accordance with paragraph (E) of this rule. The contract shall expire at 11:59 p.m. the day prior to the next three year contract beginning date specified for that business location's designated region set forth in paragraph (C) of this rule.

(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 11:59 p.m. the day prior to the next contract beginning date specified for that region.

(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 2017 and every third July first thereafter.

(2) Region two shall consist of Ashtabula, Columbiana, Cuyahoga, 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 2016 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 2017 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 2018 and every third January first thereafter.

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

(1) The application contains truthful and accurate information and is signed by an authorized representative. The application shall include:

(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 voided check or a letter of account verification from the applicant's financial institution for each location receiving reimbursement;

(c) Verification of the applicant's current food assistance program authorization;

(d) Verification that infant formula is purchased from an entity included on the WIC infant formula supplier list;

(e) Verification of good standing with the Ohio secretary of state's office, if applicable;

(f) Copy of valid state issued driver's license, state issued identification card, or passport containing a photograph of the individual(s) signing the application; and

(g) Any other documentation or information requested by the director.

(2) The applicant or one or more representatives of the applicant from each proposed location attends a training session at the time and place set by the department.

(3) The proposed location is in compliance with the minimum authorized food stocking requirement set forth in rule 3701-42-05 of the Administrative Code.

(4) The proposed location must grant access to the WIC program staff to complete the required preauthorization site visit during the hours of operation specified on the application. Failure to allow WIC program staff to enter the premises during business hours, as stated on the application, may be grounds to deny the contract;

(5) The applicant, if a current vendor, during the one year period prior to the contract beginning date as set forth in paragraph (C) of this rule had WIC sales of less than fifty per cent of gross food sales.

(6) Neither the applicant nor any of the applicant's current owners, officers, members or managers, is currently under disqualification from the WIC program or under disqualification, suspension, or withdrawal from the food assistance program.

(7) If the applicant was assessed a food assistance program civil money penalty 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 contract beginning date set forth in paragraph (C) of this rule, the applicant has not been disqualified as a licensed lottery sales agent, had a lottery sales agent license suspended or revoked pursuant to Chapter 3770. of the Revised Code.

(10) During the three years prior to the contract beginning date set forth in paragraph (C) of this rule, neither the applicant nor a current or former employee of the applicant, while not an authorized vendor, transacted WIC nutrition cards at any time including during the pendency of any administrative review, abbreviated review or other administrative or court proceeding.

(11) During the six years prior to the contract beginning date set forth in paragraph (C) of this rule, neither the applicant nor any of the applicant's current owners, officers, members, 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 but are not limited to, fraud, antitrust violations, embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, receiving stolen property, making false claims, obstruction of justice, tax evasion, wire fraud, mail fraud, selling illegal substances, or sales of drug paraphernalia.

(12) 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 may, at any time, require from any applicant or vendor, additional documentation.

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

(14) Each location at which the applicant proposes to provide authorized foods is a fixed and permanent business location, is not at an address or within a building where WIC nutrition cards are distributed and is open to the general public for the purchase of food items.

(E) The director shall not approve contracts that would exceed the maximum number of locations for the state as established each year on January 1. 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 this rule, the director shall enter into a number of contracts not exceeding the maximum number of locations in accordance with the following requirements:.

(1) The director shall contract with those applicants for locations to operate within the state , that have the lowest total price for authorized food items specifically selected for comparison by the director. For applicants that are not current vendors, the director shall develop a price survey and identify on the survey selected authorized food in a specified size, type, and brand that will be used for comparison of prices. If the applicant does not complete the price survey or does not stock a specific item, the director shall assign a price for the item not completed on the survey by deeming the price to be the highest price reported by other applicants in the state .

(2) If two or more applicants have the same total price, but all cannot receive a contract because the maximum number of locations would be exceeded, the director shall give priority to those locations that accept manufacturer coupons and discount cards.

(3) If two or more applicants have the same total price and accept manufacturer coupons and discount cards, but all cannot receive a contract because the maximum number of locations would be exceeded, the director shall approve locations in the order the properly completed applications were received or post marked.

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

(G) Before the director enters into a contract with an applicant, the department shall conduct an unannounced preauthorization site visit of each proposed location to determine compliance with rule 3701-42-05 of the Administrative Code.

(H) 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 interest of the WIC program. The amount of the civil money penalty shall not exceed two thousand five hundred dollars.

(I) 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.

(J) If vendor has been charged or indicted by another agency during the contract application period, WIC reserves the right to defer processing the application until the investigation or prosecution is complete.

(K) All authorized vendors are required to have an Ohio WIC program certified EBT system prior to contract effective date. The system shall be installed and maintained at the vendor's expense.

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

Effective: 9/16/2016
Five Year Review (FYR) Dates: 06/30/2016 and 09/15/2021
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, 6/21/97, 6/21/04, 3/20/06, 4/1/11, 6/20/13

3701-42-04 WIC vendor contract.

(A) An applicant is not authorized to act as a vendor without a valid contract executed pursuant to 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 WIC nutrition cards. The department shall not reimburse for WIC transactions that occurred before a contract becomes effective or after the contract expires.

(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 (in effect January 1, 2011) 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 WIC nutrition cards.

(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 amendment at least thirty days in advance of the effective date. A vendor may accept the amendment or may terminate the contract voluntarily as provided in paragraph (H) of this rule. A vendor that does not voluntarily terminate the contract after receiving notification under this paragraph is deemed to have accepted the amendment. A vendor may not appeal an amendment 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. A sale, assignment, or transfer of a contract shall render the contract void.

(E) A vendor or its authorized representative, which may include the purchaser or operator of the location, shall notify the department in writing, no less than thirty-days prior to any scheduled change of ownership or operation, including, but not limited to: a sale, lease, transfer, bankruptcy, dissolution, or cessation of business, or change of store location. If any of the listed events are not scheduled, the vendor must notify the department, in writing, within thirty days after the occurrence. 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.

(F) A vendor shall cease transacting WIC nutrition cards 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 the 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 nutrition card transactions that occurred on or after the effective date of termination.

(G) If a 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 nutrition cards, the director shall not accept a WIC application for processing from the applicant for that location for three years in accordance with paragraph (D) of rule 3701-42-03 of the Administrative Code. In lieu of not processing an application for three years, the director may require the vendor to reimburse the department any monies paid to the vendor while not authorized or impose a civil money penalty not to exceed two thousand five hundred dollars, whichever is greater.

(H) A vendor may voluntarily terminate the contract for any reason. The vendor shall notify the department in writing at least fifteen days before the effective date of termination. 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.

(I) 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.

(J) 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 or other delivery method that verifies receipt, at least fifteen days before the effective date of the termination.

(K) The director may terminate a contract if the vendor provided false information in connection with its contract or application for authorization.

(L) The director will terminate the vendor's contract if the Ohio secretary of state cancels a vendor's articles of incorporation.

Effective: 9/16/2016
Five Year Review (FYR) Dates: 06/30/2016 and 09/15/2021
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, 6/7/99, 7/1/01, 6/21/04, 3/20/06, 4/1/11

3701-42-05 Authorized foods; required minimum foods.

(A) The director shall develop a list of authorized foods; a list of minimum food stocking requirements; and a list of authorized infant formula suppliers. The director shall post these lists to the Ohio department of health's website with as much advance notice as possible prior to the effective date of any change.

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

(2) At least annually, the director shall review and may amend the list of authorized infant formula suppliers and the list of minimum food stocking requirements.

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

(1) Liquid cow's milk;

(2) Grade A or grade AA white chicken eggs;

(3) Two flavors of authorized juice;

(4) Authorized peanut butter;

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

(6) Authorized whole grain bread, brown rice, oatmeal, corn tortillas or whole wheat tortillas;

(7) Authorized beans or peas;

(8) Two types of authorized fruits;

(9) Two types of authorized vegetables;

(10) Authorized infant cereal;

(11) Two types of authorized infant fruits;

(12) Two types of authorized infant vegetables; and

(13) Authorized infant formula.

(C) Each vendor and applicant shall:

(1) Clearly mark or post current prices, including sale prices, either on the authorized food item, on a shelf tag, or on a sign immediately next to or in front of the item.

(2) Ensure that authorized foods are not spoiled or defective or offered for sale after the manufacturer stated sell by, best if used by, or other date limiting the sale or use of the item, or that foods have not been recalled.

(3) Ensure that authorized foods are stored and displayed in a sanitary manner.

Effective: 9/16/2016
Five Year Review (FYR) Dates: 06/30/2016 and 09/15/2021
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, 10/1/09, 4/1/11

3701-42-06 WIC vendor responsibilities.

(A) A vendor shall provide to participants only authorized foods in exchange for the benefits on the WIC nutrition card.

(B) A vendor shall permit participants the option to select part or all of the available quantities, sizes, and types of authorized food contained on the WIC nutrition card.

(C) A vendor shall offer participants the same courtesies extended to other customers, including but not limited to: providing a sales receipt and accepting store and manufacturer coupons, discount cards, or other discounts offered. However, vendors may not provide participants incentive items, vendor discounts, coupons or other promotions that are not offered to non-WIC customers.

(D) A vendor shall accept valid WIC nutrition cards presented by a participant and shall:

(1) Deduct the value of any manufacturer or store coupons, discount cards, or other discounts offered from the total before requesting participant to approve the transaction;

(2) Be responsible for all WIC nutrition card benefits 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 under a management agreement;

(3) Ensure the department is not charged more than the marked or posted prices and is not charged more than non-WIC customers for authorized foods;

(4) Provide all participants with benefit receipts generated at the time of the WIC transaction; and

(5) Return to the local WIC agency within twenty-four hours any WIC nutrition card found at the location.

(E) 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. 1786, (in effect January 7, 2011), pertinent federal regulations for the WIC program including 7 C.F.R. part 246, (in effect January 1, 2011) 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. 2000d (in effect January 7, 2011), pertinent regulations adopted thereunder, and 7 C.F.R. parts 15, 15A, and 15B (in effect January 1, 2011); and

(3) All federal, state and local criminal laws either felony or misdemeanor.

(F) The department or its designee may conduct announced and unannounced inspections of a vendor's or applicant's location at any time during business hours, as stated on the application, to determine compliance with WIC program requirements. The vendor or applicant and its employees and agents shall cooperate with the department 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 its designee may confiscate WIC nutrition cards in the possession of the location. The vendor must grant access to WIC program staff during the hours of operation specified on the vendor application. Failure to grant access to premises during the specified business hours may be grounds to terminate the contract.

(G) A vendor shall be subject to audit by the department and FNS for the time period covering any present or previous WIC authorization. A vendor shall maintain all original records of purchases, gross sales receipts, state and federal income tax documents, and invoices for all authorized supplemental foods for a period of not less than three years after the end of each federal fiscal year while contracted, 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 vendor shall keep the records until all issues are resolved.

(H) A vendor shall respond in writing within fifteen calendar days after receiving a written request from the department for verification of ownership of the business entity or locations, verification of authorized food purchases and sales, or other documentation.

(I) A vendor shall maintain current status as an authorized vendor under the food assistance program.

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

(K) A vendor shall display the department issued "WIC Nutrition Card Accepted Here" sign in a prominent place at the entrance of each location.

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

(1) Exchange WIC nutrition card or benefits contained on the card for cash, firearms, ammunition, explosives, or controlled substances as defined in 21 U.S.C. 802 (in effect January 3, 2012);

(2) Exchange WIC nutrition card or benefits contained on the card for alcohol or alcoholic beverages or tobacco products;

(3) Exchange WIC nutrition card or benefits contained on the card for credit, including rain checks or non-food items.

(4) Provide refunds or permit exchanges for authorized food except for an exchange of an identical authorized food item when the original 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 food item means the exact brand and size as the original item obtained and returned by the participant or alternate shopper;

(5) Provide the participant with any monetary change from a WIC transaction unless it is a split tender transaction;

(6) Require a participant to exchange his or her selection of authorized foods;

(7) Redeem WIC nutrition card benefits for authorized foods not received by the participants;

(8) Redeem WIC nutrition card benefits in which the amount of sale is more than the marked or posted prices for the authorized foods or more than the prices charged other customers;

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

(10) Seek reimbursement from the department for WIC nutrition card benefits transacted by another person or location, while not authorized as a vendor under rule 3701-42-03 of the Administrative Code;

(11) Redeem WIC nutrition card benefits for a specific authorized food item which exceeds the store's documented inventory of that authorized food item for a specific period of time;

(12) Redeem WIC nutrition card benefits for unauthorized food items;

(13) Redeem WIC nutrition card benefits for foods in excess of the authorized food items contained on the card;

(14) Provide home delivery of authorized foods except as otherwise provided in this chapter of the Administrative Code.

Replaces: 3701-42-06

Effective: 9/16/2016
Five Year Review (FYR) Dates: 09/15/2021
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, 6/21/04, 3/20/06, 4/1/11

3701-42-07 Payment for food instruments.

(A) The department shall pay a vendor for EBT transactions submitted to the state WIC program if all of the following conditions are met:

(1) The WIC nutrition card transaction occurred during the valid redemption period;

(2) The transactions contained in the claim file are less than forty-eight hours old at the time of claim file submission;

(3) The participant approves the transaction at the point of sale;

(4) The claim file includes transactions that occurred only at the authorized vendor location; and

(5) 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, whichever is lower, for each WIC food item in the transaction.

(C) WIC EBT transactions may be deemed invalid for payment or, if paid, future payments may be offset for any of the following reasons:

(1) The vendor does not successfully transmit the WIC EBT claim file to the state's WIC EBT processing system (host) within forty-eight hours of the oldest transaction contained in the claim file;

(2) The vendor processes a transaction for a WIC nutrition card that was on the hot card list file for more than twenty-four hours;

(3) The transaction data appears to be forged or altered;

(4) The store accepted the transaction while disqualified or terminated from the WIC program or did not have a valid vendor agreement;

(5) Unauthorized foods or unauthorized brands and/or unauthorized quantities of foods were redeemed. This includes but is not limited to, items issued to participants before the effective date or after the expiration date of the UPC/PLU in the "Authorized Product List" file;

(6) The price of the food item within a transaction is more than the not-to-exceed price designated by the state for that food item and quantity or exceeds the store's customary selling price for the food issued;

(7) The transaction includes UPC, PLU, benefit quantity, or dollar amounts for foods not received by the participant; and

(8) The transaction is missing required data elements such as UPC, PLU, category, subcategory or quantity.

(D) Notwithstanding paragraph (C) of this rule, the department may pay for a transaction if:

(1) The vendor submitted a claim file to the state host that contained transactions beyond the forty-eight hour claim submission period referenced in paragraph A 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 transactions submitted at one time exceeds five hundred dollars, the department must obtain approval from the FNS regional office to pay for the transactions.

(2) The vendor submitted transactions in which the actual amount of sale exceeds the maximum value of the WIC benefit and the vendor justifies in writing and documents to the director's satisfaction that the actual amount paid for the authorized food was greater than the maximum value because of legitimate increases in the cost paid by the vendor for the authorized food. Documentation may include a copy of the wholesaler's invoice or similar evidence.

(E) The vendor may request reconsideration of the department's determination not to pay for a transaction. The auto-reconciliation file will contain details on the transactions that the department has determined it will not pay based upon the transaction failing to meet the conditions specified in paragraph (A) of this rule. The department will provide access to the auto-reconciliation file generated by the State host after each processing day. It is the vendor's responsibility to review the data contained in the auto-reconciliation file. The request for reconsideration must be made in writing and received by the department within thirty days of the date the auto reconciliation file was created that contains the transactions the department will not pay.

(F) 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.

(G) The department may delay payment to the vendor or establish a claim in the amount of the full purchase price of each transaction that contained a vendor overcharge or other error.

(H) Upon request by the department, a vendor shall refund to the department, within ninety days of written request, 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 (E) of this rule for a determination not to pay for a transaction.

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

Replaces: 3701-42-07

Effective: 9/16/2016
Five Year Review (FYR) Dates: 09/15/2021
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, 6/21/04, 4/1/11

3701-42-08 Abuse of the WIC program; sanctions.

(A) The director shall sanction vendors that abuse the WIC program. The vendor violations referenced in paragraphs (B) to (E) of this rule constitute abuse of the WIC program. The director may sanction a vendor for any violation of this chapter of the Administrative Code that does not constitute abuse. The director will provide the vendor with a notice that violations are occurring that may lead to mandatory sanctions under paragraph (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 WIC nutrition cards or the benefits contained on the card for cash, firearms, ammunition, explosives, or controlled substances as defined in 21 U.S.C. 802 (in effect on January 3, 2012).

(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 WIC nutrition cards or the benefits contained on the card for alcohol or alcoholic beverages or tobacco products;

(2) Transacted WIC nutrition card benefits for a specific authorized food, which exceeds the vendor's documented inventory of that authorized food for a specific period of time;

(3) Failed to respond and provide the requested original documents for verification of authorized food purchases and sales as set forth in paragraph (K) of rule 3701-42-06 of the Administrative Code; or

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

(a) Exchanging WIC nutrition cards or the benefits contained on the card for credit, including rain checks, or non-food items;

(b) Redeeming WIC nutrition card benefits for authorized foods not received by the participants ;

(c) Redeeming WIC nutrition card benefits for which the reported amount of sale is more than the marked or posted prices charged to other customers regardless of the not to exceed amount for the item(s) purchased;

(d) Seeking reimbursement from the department for WIC nutrition card benefits submitted through an authorized vendor while not authorized as a vendor under rule 3701-42-03 of the Administrative Code.

(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 benefits on the WIC nutrition card, including charging for authorized foods provided in excess of those on the WIC nutrition card.

(E) The director shall terminate a contract and disqualify from the WIC program a vendor who has been disqualified from the food assistance program. The disqualification from the WIC program shall be for the same length of time as the disqualification from the food assistance program. The disqualification from the WIC program may begin at a later date than the food assistance program disqualification and shall take effect on the date the vendor receives notice of WIC disqualification. Termination and disqualification from the WIC program under this paragraph is not subject to an administrative or abbreviated review as set forth in rule 3701-42-09 of the Administrative Code.

(F) The director shall terminate a contract of a vendor who has been suspended, disqualified, withdrawn or otherwise no longer authorized bythe food assistance program. Contract termination pursuant to this paragraph is not subject to an administrative or abbreviated review as set forth in rule 3701-42-09 of the Administrative Code.

(G) 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 (O) of this rule.

(H) The director shall double the civil money penalty for a 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 (O) of this rule.

(I) The director shall double the civil money penalty for 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.

(J) 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 WIC nutrition cards or benefits on the cards or selling firearms, ammunition, explosives, or controlled substances as defined in 21 U.S.C. 802 (in effect on January 3, 2012), in exchange for WIC nutrition cards or benefits on the cards.

(K) The director may terminate a contract and disqualify from the WIC program a vendor whose WIC sales exceed fifty per cent of its gross food sales.

(L) 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.

(M) The director may terminate a contract and disqualify from the WIC program a vendor that has been assessed a civil money penalty in the food assistance program, as provided under 7 C.F.R. 278.6 (in effect on January 1, 2012). The length of such disqualification shall correspond to the period for which the vendor would otherwise have been disqualified from the food assistance 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.

(N) The director may choose to impose a civil money penalty in lieu of termination and disqualification from the WIC program if the director determines that it is in the best interest of the WIC program.

(O) The director shall use the following formula to calculate a civil money penalty imposed in lieu of disqualification pursuant to paragraph (G) or (N) 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 (O)(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 (J) 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 benefits on the WIC nutrition card. 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 (J) 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 benefits on the WIC nutrition card.

(P) In determining the period of disqualification to impose or amount of civil money penalty to assess a vendor pursuant to paragraph (O) 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 state WIC program; and

(4) The vendor's volume of WIC business.

(Q) 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.

(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 assistance 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 vendor contract in accordance with rule 3701-42-03 of the Administrative Code after the period of disqualification has expired.

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

Effective: 9/16/2016
Five Year Review (FYR) Dates: 06/30/2016 and 09/15/2021
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, 6/21/04, 4/1/11

3701-42-09 Administrative review of adverse action affecting vendor and applicant participation.

(A) This rule prescribes the rights to administrative review of an applicant, or 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 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 unless otherwise prohibited by this chapter.

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

(a) Denial of an application based on a finding that vendor or applicant lacks business integrity as required by paragraph (D) (11) of rule 3701-42-03 of the Administrative Code;

(b) Denial of an application based on a finding that vendor or applicant is not authorized to participate in the food assistance program;

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

(d) Denial of an application that was submitted outside of the

time frames 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 an application based 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 vendor or applicant was disqualified from the food assistance program for a trafficking conviction under paragraph (J) of rule 3701-42-08 of the Administrative Code;

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

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

(3) There is no 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; and

(d) Termination of a contract pursuant to paragraph (J) of rule 3701-42-04 of the Administrative Code.

(B) As used in this rule, "affected party" means anyone entitled to an administrative or abbreviated review under this rule. For any adverse action taken against a vendor or 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 prior to the effective date of the action. For any action in which the vendor or applicant 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, by hand-delivery or other delivery method that verifies receipt. If the notification is sent by certified mail return receipt requested, and 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 received by the department 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) 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.

(D) The affected party may request an administrative 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 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.

(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 fourteen 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 party shall have the opportunity to be represented by counsel, , and shall have the opportunity to review the case record before the administrative review. If the affected party is a corporation or a limited liability company, it must be represented by an attorney licensed to practice law in Ohio at the administrative review.

(G) The affected party may request an abbreviated review by submitting a written request for review along with a response to the director's notification of adverse action. The written response along with any evidence the affected party would like considered during the review must be received by the department within fifteen days after the affected party 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. The decision shall:

(1) Rest solely on the evidence presented for the review and the statutory and regulatory provisions governing the WIC program;

(2) Describe the basis for the decision, but need not contain a full opinion or formal findings of fact and conclusions of law;

(3) Be sent to the affected party by certified mail, return receipt requested, or hand delivery 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 (D)(3) of this rule. A copy of the decision must be provided to the director; and

(4) Shall be final and not subject to further administrative proceedings.

(I) The ninety day time frame 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 time frame.

Effective: 9/16/2016
Five Year Review (FYR) Dates: 06/30/2016 and 09/15/2021
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, 6/21/04, 10/1/09, 6/20/10, 4/1/11

3701-42-10 Pharmacy vendor authorization.

(A) To apply for a contract, a pharmacy applicant shall complete an application packet on forms prescribed by the director. The director shall determine a pharmacy applicant to be authorized by entering into a contract with the pharmacy applicant that meets the criteria set forth in rule 3701-42-03 of the Administrative Code, as applicable, to provide prescribed infant formula to participants. The contract shall be for a term of no more than three years. Unless otherwise provided in this rule, the contract beginning date shall be consistent with the dates set forth in paragraph (C) of rule 3701-42-03 of the Administrative Code.

(B) A pharmacy applicant is not required to have food assistance program authorization.

(C) A pharmacy shall only provide prescribed infant formula in exchange for the benefits on the WIC nutrition card unless the director determines it is in the best interest of the program to permit the location to also provide contract formula. The prescribed formula must be provided to the participant within twenty-four hours of request.

(D) A pharmacy shall comply with the requirements of rules 3701-42-04, 3701-42-06, and 3701-42-07 of the Administrative Code, where applicable.

(E) The director shall sanction a pharmacy that abuses the WIC program in accordance with rule 3701-42-08 of the Administrative Code.

(F) A pharmacy or pharmacy applicant subject to an adverse action under rule 3701-42-08 of the Administrative Code shall have the right to an administrative or abbreviated review in accordance with rule 3701-42-09 of the Ohio Administrative Code.

Effective: 9/16/2016
Five Year Review (FYR) Dates: 09/15/2021
Promulgated Under: 119.03
Statutory Authority: 3701.132
Rule Amplifies: 3701.132

3701-42-11 [Rescinded] Farmer contract.

Effective: 9/16/2016
Five Year Review (FYR) Dates: 06/30/2016
Promulgated Under: 119.03
Statutory Authority: 3701.132
Rule Amplifies: 3701.132
Prior Effective Dates: 10/01/2009, 4/1/11

3701-42-12 [Rescinded] Farmer responsibilities.

Effective: 9/16/2016
Five Year Review (FYR) Dates: 06/30/2016
Promulgated Under: 119.03
Statutory Authority: 3701.132
Rule Amplifies: 3701.132
Prior Effective Dates: 10/1/2009, 4/1/11

3701-42-13 [Rescinded] Payment for fruit and vegetable vouchers.

Effective: 9/16/2016
Five Year Review (FYR) Dates: 06/30/2016
Promulgated Under: 119.03
Statutory Authority: 3701.132
Rule Amplifies: 3701.132
Prior Effective Dates: 10/1/2009, 4/1/11

3701-42-14 [Rescinded] Farmer sanctions.

Effective: 9/16/2016
Five Year Review (FYR) Dates: 06/30/2016
Promulgated Under: 119.03
Statutory Authority: 3701.132
Rule Amplifies: 3701.132
Prior Effective Dates: 10/1/2009, 4/1/11