3701-42-09 Administrative review of adverse action affecting WIC retail vendor participation.

(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

(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;

(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