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pdf§ 245.14
7 CFR Ch. II (1–1–18 Edition)
(e) Continuous improvement plan required. A State agency having a direct
certification rate with SNAP that is
less than the direct certification performance benchmarks set forth in
paragraph (b) of this section must submit to FNS for approval, within 90 days
of notification, a CIP in accordance
with paragraph (f) of this section.
(f) Continuous improvement plan required components. CIPs must include,
at a minimum:
(1) The specific measures that the
State will use to identify more children who are eligible for direct certification, including improvements or
modifications to technology, information systems, or databases;
(2) A multiyear timeline for the
State to implement these measures;
(3) Goals for the State to improve direct certification results for the following school year; and
(4) Information about the State’s
progress toward implementing other
direct certification requirements, as
provided in FNS guidance.
(g) Continuous improvement plan implementation. A State must maintain its
CIP and implement it according to the
timeframes in the approved plan.
[78 FR 12230, Feb. 22, 2013. Redesignated at 79
FR 7054, Feb. 6, 2014; 81 FR 50210, July 29,
2016]
to the same penalties provided in paragraph (a) of this section.
(Sec. 10(a), Pub. L. 95–627, 92 Stat. 3623 (42
U.S.C. 1760); sec. 14, Pub. L. 95–627, 92 Stat.
3625–3626)
[Amdt. 14, 44 FR 37901, June 29, 1979, as
amended at 64 FR 50744, Sept. 20, 1999. Redesignated at 78 FR 12230, Feb. 22, 2013, and further redesignated at 79 FR 7054, Feb. 6, 2014]
§ 245.15 Information collection/recordkeeping—OMB assigned control
numbers.
7 CFR section where requirements are described
245.3 (a), (b) ......................................................
245.4 ..................................................................
245.5 (a), (b) ......................................................
245.6 (a), (b), (c), (e) .........................................
245.7(a) ..............................................................
245.9 (a), (b), (c) ...............................................
245.10 (a), (d), (e) .............................................
245.11 (a), (a–1), (b), (c), (d), (f) .......................
245.13(a)–(c) .....................................................
Current
OMB control
number
0584–0026
0584–0026
0584–0026
0584–0026
0584–0026
0584–0026
0584–0026
0584–0026
0584–0026
[72 FR 68985, Dec. 6, 2007, as amended at 73
FR 11312, Mar. 3, 2008. Redesignated at 78 FR
12230, Feb. 22, 2013, and further redesignated
at 79 FR 7054, Feb. 6, 2014]
PART 246—SPECIAL SUPPLEMENTAL
NUTRITION
PROGRAM
FOR
WOMEN, INFANTS AND CHILDREN
Subpart A—General
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§ 245.14
Fraud penalties.
(a) Whoever embezzles, willfully
misapplies, steals, or obtains by fraud
any funds, assets, or property provided
under this part, whether received directly or indirectly from the Department, shall—
(1) If such funds, assets, or property
are of a value of $100 or more, be fined
not more than $25,000 or imprisoned not
more than five years of both; or
(2) If such funds, assets, or property
are of a value of less than $100, be fined
not more than $1,000 or imprisoned not
more than one year or both.
(b) Whoever receives, conceals, or retains to his use or gain funds, assets, or
property provided under this part,
whether received directly or indirectly
from the Department, knowing such
funds, assets, or property have been
embezzled, willfully misapplied, stolen,
or obtained by fraud, shall be subject
Sec.
246.1
246.2
246.3
General purpose and scope.
Definitions.
Administration.
Subpart B—State and Local Agency
Eligibility
246.4 State plan.
246.5 Selection of local agencies.
246.6 Agreements with local agencies.
Subpart C—Participant Eligibility
246.7 Certification of participants.
246.8 Nondiscrimination.
246.9 Fair hearing procedures for participants.
Subpart D—Participant Benefits
246.10
246.11
Supplemental foods.
Nutrition education.
Subpart E—State Agency Provisions
246.12
Food delivery methods.
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Food and Nutrition Service, USDA
§ 246.2
246.13 Financial management system.
246.14 Program costs.
246.15 Program income other than grants.
246.16 Distribution of funds.
246.16a Infant formula and authorized foods
cost containment.
246.17 Closeout procedures.
246.18 Administrative appeal of State agency actions.
Subpart F—Monitoring and Review
246.19 Management evaluation and monitoring reviews.
246.20 Audits.
246.21 Investigations.
Subpart G—Miscellaneous Provisions
246.22 Administrative appeal of FNS decisions.
246.23 Claims and penalties.
246.24 Procurement and property management.
246.25 Records and reports.
246.26 Other provisions.
246.27 Program information.
246.28 OMB control numbers.
AUTHORITY: 42 U.S.C. 1786.
SOURCE: 50 FR 6121, Feb. 13, 1985, unless
otherwise noted.
EDITORIAL NOTE: Nomenclature changes to
part 246 appear at 76 FR 35097, June 16, 2011.
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Subpart A—General
§ 246.1 General purpose and scope.
This part announces regulations
under which the Secretary of Agriculture shall carry out the Special
Supplemental Nutrition Program for
Women, Infants and Children (WIC Program). Section 17 of the Child Nutrition Act of 1966, as amended, states in
part that the Congress finds that substantial
numbers
of
pregnant,
postpartum and breastfeeding women,
infants and young children from families with inadequate income are at special risk with respect to their physical
and mental health by reason of inadequate nutrition or health care, or
both. The purpose of the Program is to
provide supplemental foods and nutrition education, including breastfeeding
promotion and support, through payment of cash grants to State agencies
which administer the Program through
local agencies at no cost to eligible
persons. The Program shall serve as an
adjunct to good health care during
critical times of growth and develop-
ment, in order to prevent the occurrence of health problems, including
drug and other harmful substance
abuse, and to improve the health status of these persons. The program shall
be supplementary to SNAP; any program under which foods are distributed
to needy families in lieu of SNAP benefits; and receipt of food or meals from
soup kitchens, or shelters, or other
forms of emergency food assistance.
[50 FR 6121, Feb. 13, 1985, as amended at 54
FR 51294, Dec. 14, 1989; 58 FR 11506, Feb. 26,
1993; 76 FR 59888, Sept. 28, 2011]
§ 246.2 Definitions.
For the purpose of this part and all
contracts,
guidelines,
instructions,
forms and other documents related
hereto, the term:
2 CFR part 200, means the Uniform
Administrative Requirements, Cost
Principles, and Audit Requirements for
Federal Awards published by OMB. The
part reference covers applicable: Acronyms and Definitions (subpart A), General Provisions (subpart B), Post Federal Award Requirements (subpart D),
Cost Principles (subpart E), and Audit
Requirements (subpart F). (NOTE: PreFederal Award Requirements and Contents of Federal Awards (subpart C)
does not apply to the National School
Lunch Program).
Above-50-percent vendors means vendors that derive more than 50 percent
of their annual food sales revenue from
WIC food instruments, and new vendor
applicants expected to meet this criterion under guidelines approved by
FNS.
Affirmative Action Plan means that
portion of the State Plan which describes how the Program will be initiated and expanded within the State’s
jurisdiction
in
accordance
with
§ 246.4(a).
A–130 means Office of Management
and Budget Circular A–130, which provides guidance for the coordinated development and operation of information systems.
Applicants means pregnant women,
breastfeeding
women,
postpartum
women, infants, and children who are
applying to receive WIC benefits, and
the breastfed infants of applicant
breastfeeding women. Applicants include individuals who are currently
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§ 246.2
7 CFR Ch. II (1–1–18 Edition)
participating in the program but are
re-applying because their certification
period is about to expire.
Authorized supplemental foods means
those supplemental foods authorized by
the State or local agency for issuance
to a particular participant.
Breastfeeding means the practice of
feeding a mother’s breastmilk to her
infant(s) on the average of at least
once a day.
Breastfeeding women means women up
to one year postpartum who are
breastfeeding their infants.
Cash-value voucher means a fixed-dollar amount check, voucher, electronic
benefit transfer (EBT) card or other
document which is used by a participant to obtain authorized fruits and
vegetables. Cash-value voucher is also
known as cash-value benefit (CVB) in
an EBT environment.
Categorical eligibility means persons
who meet the definitions of pregnant
women,
breastfeeding
women,
postpartum women, or infants or children.
Certification means the implementation of criteria and procedures to assess and document each applicant’s eligibility for the Program.
Children means persons who have had
their first birthday but have not yet
attained their fifth birthday.
Clinic means a facility where applicants are certified.
Competent
professional
authority
means an individual on the staff of the
local agency authorized to determine
nutritional risk and prescribe supplemental foods. The following persons
are the only persons the State agency
may authorize to serve as a competent
professional authority: Physicians, nutritionists (bachelor’s or master’s degree in Nutritional Sciences, Community Nutrition, Clinical Nutrition, Dietetics, Public Health Nutrition or
Home Economics with emphasis in Nutrition), dieticians, registered nurses,
physician’s assistants (certified by the
National Committee on Certification of
Physician’s Assistants or certified by
the State medical certifying authority), or State or local medically
trained health officials. This definition
also applies to an individual who is not
on the staff of the local agency but who
is qualified to provide data upon which
nutritional risk determinations are
made by a competent professional authority on the staff of the local agency.
Competitive bidding means a procurement process under which FNS or the
State agency selects a single source
(such as a single infant formula manufacturer offering the lowest price), as
determined by the submission of sealed
bids, for a product for which bids are
sought for use in the Program.
Compliance buy means a covert, onsite investigation in which a representative of the Program poses as a participant, parent or caretaker of an infant
or child participant, or proxy, transacts one or more food instruments or
cash-value vouchers, and does not reveal during the visit that he or she is a
program representative.
Contract brand infant formula means
all infant formulas (except exempt infant formulas) produced by the manufacturer awarded the infant formula
cost containment contract. If under a
single solicitation the manufacturer
subcontracts for soy-based infant formula, then all soy-based infant formulas covered by the subcontract are
also considered contract brand infant
formulas (see § 246.16a(c)(1)(i)). If a
State agency elects to solicit separate
bids for milk-based and soy-based infant formulas, all infant formulas
issued under each contract are considered the contract brand infant formula
(see § 246.16a(c)(1)(ii)). For example, all
of the milk-based infant formulas
issued by a State agency that are produced by the manufacturer that was
awarded the milk-based contract are
considered contract brand infant formulas. Similarly, all of the soy-based
infant formulas issued by a State agency that are produced by the manufacturer that was awarded the soy-based
contract are also considered to be contract brand infant formulas. Contract
brand infant formulas also include all
infant formulas (except exempt infant
formulas) introduced after the contract
is awarded.
Cost containment measure means a
competitive bidding, rebate, direct distribution, or home delivery system implemented by a State agency as described in its approved State Plan of
operation and administration.
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Food and Nutrition Service, USDA
§ 246.2
CSFP means the Commodity Supplemental Food Program administered by
the Department, authorized by section
5 of the Agriculture and Consumer Protection Act of 1973, as amended, and
governed by part 247 of this title.
Days means calendar days.
Department means the U.S. Department of Agriculture.
Discount means, with respect to a
State agency that provides Program
foods to participants without the use of
retail grocery stores (such as a State
agency that provides for the home delivery or direct distribution of supplemental food), the amount of the price
reduction or other price concession
provided to any State agency by the
manufacturer or supplier of the particular food product as the result of the
purchase of Program food by each such
State agency, or its representative,
from the manufacturer or supplier.
Disqualification means the act of ending the Program participation of a participant, authorized food vendor, or authorized State or local agency, whether
as a punitive sanction or for administrative reasons.
Documentation means the presentation of written documents which substantiate statements made by an applicant or participant or a person applying on behalf of an applicant.
Drug means:
(a) A beverage containing alcohol;
(b) A controlled substance (having
the meaning given it in section 102(6) of
the Controlled Substance Act (21 U.S.C.
802(6)); or
(c) A controlled substance analogue
(having the meaning given it in section
102(32) of the Controlled Substance Act
(21 U.S.C. 802(32)).
Dual participation means simultaneous participation in the Program in
one or more than one WIC clinic, or
participation in the Program and in
the CSFP during the same period of
time.
EBT Capable means the WIC vendor
demonstrates their cash register system or payment device can accurately
and securely obtain WIC food balances
associated with an EBT card, maintain
the necessary files such as the authorized product list, hot card file and
claim file and successfully complete
WIC EBT purchases.
Electronic Benefit Transfer (EBT)
means a method that permits electronic access to WIC food benefits
using a card or other access device approved by the Secretary.
Electronic signature means an electronic sound, symbol, or process, attached to or associated with an application or other record and executed
and or adopted by a person with the intent to sign the record.
Employee fraud and abuse means the
intentional conduct of a State, local
agency or clinic employee which violates program regulations, policies, or
procedures, including, but not limited
to, misappropriating or altering food
instruments or cash-value vouchers,
entering false or misleading information in case records, or creating case
records for fictitious participants.
Exempt infant formula means an infant formula that meets the requirements for an exempt infant formula
under section 412(h) of the Federal
Food, Drug, and Cosmetic Act (21
U.S.C. 350a(h)) and the regulations at
21 CFR parts 106 and 107.
Family means a group of related or
nonrelated individuals who are living
together as one economic unit, except
that residents of a homeless facility or
an institution shall not all be considered as members of a single family.
Farmer means an individual authorized by the State agency to sell eligible
fruits and vegetables to participants at
a farmers’ market or roadside stands.
Individuals
who
exclusively
sell
produce grown by someone else, such
as wholesale distributors, cannot be
authorized.
Farmers’ market means an association
of local farmers who assemble at a defined location for the purpose of selling
their produce directly to consumers.
Fiscal year means the period of 12 calendar months beginning October 1 of
any calendar year and ending September 30 of the following calendar
year.
FNS means the Food and Nutrition
Service of the U.S. Department of Agriculture.
Food costs means the costs of supplemental foods, determined in accordance with § 246.14(b).
Food delivery system means the method used by State and local agencies to
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§ 246.2
7 CFR Ch. II (1–1–18 Edition)
provide supplemental foods to participants.
Food instrument means a voucher,
check, electronic benefits transfer card
(EBT), coupon or other document
which is used by a participant to obtain supplemental foods.
Food sales means sales of all SNAP eligible foods intended for home preparation and consumption, including meat,
fish, and poultry; bread and cereal
products; dairy products; fruits and
vegetables. Food items such as condiments and spices, coffee, tea, cocoa,
and carbonated and noncarbonated
drinks may be included in food sales
when offered for sale along with foods
in the categories identified above. Food
sales do not include sales of any items
that cannot be purchased with SNAP
benefits, such as hot foods or food that
will be eaten in the store.
Full nutrition benefit means the minimum amount of reconstituted fluid
ounces of liquid concentrate infant formula as specified in Table 1 of
§ 246.10(e)(9) for each food package category and infant feeding variation
(e.g., Food Package IA fully formula
fed, IA–FF).
Health services means ongoing, routine pediatric and obstetric care (such
as infant and child care and prenatal
and postpartum examinations) or referral for treatment.
High-risk vendor means a vendor identified as having a high probability of
committing a vendor violation through
application of the criteria established
in § 246.12(j)(3) and any additional criteria established by the State agency.
Home food delivery contractor means a
sole proprietorship, partnership, cooperative association, corporation, or
other business entity that contracts
with a State agency to deliver authorized supplemental foods to the residences of participants under a home
food delivery system.
Homeless facility means the following
types of facilities which provide meal
service. A supervised publicly or privately operated shelter (including a
welfare hotel or congregate shelter) designed to provide temporary living accommodations; a facility that provides
a temporary residence for individuals
intended to be institutionalized; or a
public or private place not designed
for, or normally used as, a regular
sleeping accommodation for human
beings.
Homeless individual means a woman,
infant or child:
(a) Who lacks a fixed and regular
nighttime residence; or
(b) Whose primary nighttime residence is:
(1) A supervised publicly or privately
operated shelter (including a welfare
hotel, a congregate shelter, or a shelter
for victims of domestic violence) designated to provide temporary living accommodation;
(2) An institution that provides a
temporary residence for individuals intended to be institutionalized;
(3) A temporary accommodation of
not more than 365 days in the residence
of another individual; or
(4) A public or private place not designed for, or ordinarily used as, a regular
sleeping
accommodation
for
human beings.
IHS means the Indian Health Service
of the U.S. Department of Health and
Human Services.
Individual with disabilities means a
handicapped person as defined in 7 CFR
15b.3.
Infant formula means a food that
meets the definition of an infant formula in section 201(z) of the Federal
Food, Drug, and Cosmetic Act (21
U.S.C. 321(z)) and that meets the requirements for an infant formula under
section 412 of the Federal Food, Drug,
and Cosmetic Act (21 U.S.C. 350a) and
the regulations at 21 CFR parts 106 and
107.
Institution means any residential accommodation which provides meal
service, except private residences and
homeless facilities.
Infants means persons under one year
of age.
Inventory audit means the examination of food invoices or other proofs of
purchase to determine whether a vendor has purchased sufficient quantities
of supplemental foods to provide participants the quantities specified on
food instruments redeemed by the vendor during a given period of time.
Local agency means: (a) A public or
private, nonprofit health or human
service agency which provides health
services, either directly or through
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Food and Nutrition Service, USDA
§ 246.2
contract, in accordance with § 246.5; (b)
an IHS service unit; (c) an Indian tribe,
band or group recognized by the Department of the Interior which operates a health clinic or is provided
health services by an IHS service unit;
or (d) an intertribal council or group
that is an authorized representative of
Indian tribes, bands or groups recognized by the Department of the Interior, which operates a health clinic or
is provided health services by an IHS
service unit.
Members of populations means persons
with a common special need who do not
necessarily reside in a specific geographic area, such as off-reservation
Indians or migrant farmworkers and
their families.
Migrant farmworker means an individual whose principal employment is
in agriculture on a seasonal basis, who
has been so employed within the last 24
months, and who establishes, for the
purposes of such employment, a temporary abode.
Multi-function
equipment
means
Point-of-Sale equipment obtained by a
WIC vendor through commercial suppliers, which is capable of supporting
WIC EBT and other payment tender
types.
Net price means the difference between an infant formula manufacturer’s lowest national wholesale price per
unit for a full truckload of infant formula and the rebate level or the discount offered or provided by the manufacturer under an infant formula cost
containment contract.
Non-contract brand infant formula
means all infant formula, including exempt infant formula, that is not covered by an infant formula cost containment contract awarded by that State
agency.
Nonprofit agency means a private
agency which is exempt from income
tax under the Internal Revenue Code of
1954, as amended.
Nutrition education means individual
and group sessions and the provision of
materials that are designed to improve
health status and achieve positive
change in dietary and physical activity
habits, and that emphasize the relationship between nutrition, physical
activity, and health, all in keeping
with the personal and cultural preferences of the individual.
Nutrition Services and Administration
(NSA) Costs means those direct and indirect costs, exclusive of food costs, as
defined in § 246.14(c), which State and
local agencies determine to be necessary to support Program operations.
Costs include, but are not limited to,
the costs of Program administration,
start-up, monitoring, auditing, the development of and accountability for
food delivery systems, nutrition education and breastfeeding promotion
and support, outreach, certification,
and developing and printing food instruments and cash-value vouchers.
Nutritional risk means: (a) Detrimental or abnormal nutritional conditions detectable by biochemical or anthropometric measurements; (b) Other
documented nutritionally related medical conditions; (c) Dietary deficiencies
that impair or endanger health; (d)
Conditions that directly affect the nutritional health of a person, including
alcoholism or drug abuse; or (e) Conditions that predispose persons to inadequate nutritional patterns or nutritionally related medical conditions, including, but not limited to, homelessness and migrancy.
OIG means the Department’s Office
of the Inspector General.
Other harmful substances means other
substances such as tobacco, prescription drugs and over-the-counter medications that can be harmful to the
health of the WIC population, especially the pregnant woman and her
fetus.
Partially-redeemed
food
instrument
means a paper food instrument which
is redeemed for less than all of the supplemental foods authorized for that
food instrument.
Participant violation means any deliberate action of a participant, parent or
caretaker of an infant or child participant, or proxy that violates Federal or
State statutes, regulations, policies, or
procedures governing the Program.
Participant violations include, but are
not limited to, deliberately making
false or misleading statements or deliberately misrepresenting, concealing,
or withholding facts, to obtain benefits; selling or offering to sell WIC benefits, including cash-value vouchers,
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§ 246.2
7 CFR Ch. II (1–1–18 Edition)
food instruments, EBT cards, or supplemental foods in person, in print, or
online; exchanging or attempting to
exchange WIC benefits, including cashvalue vouchers, food instruments, EBT
cards, or supplemental foods for cash,
credit, services, non-food items, or unauthorized food items, including supplemental foods in excess of those listed on the participant’s food instrument; threatening to harm or physically harming clinic, farmer, or vendor staff; and dual participation.
Participants means pregnant women,
breastfeeding
women,
postpartum
women, infants and children who are
receiving supplemental foods or food
instruments or cash-value vouchers
under the Program, and the breastfed
infants of participant breastfeeding
women.
Participation means the sum of:
(1) The number of persons who received supplemental foods or food instruments during the reporting period;
(2) The number of infants who did not
receive supplemental foods or food instruments but whose breastfeeding
mother received supplemental foods or
food instruments during the report period; and
(3) The number of breastfeeding
women who did not receive supplemental foods or food instruments but
whose infant received supplemental
foods or food instruments during the
report period.
Postpartum women means women up
to six months after termination of
pregnancy.
Poverty income guidelines means the
poverty income guidelines prescribed
by the Department of Health and
Human Services. These guidelines are
adjusted annually by the Department
of Health and Human Services, with
each annual adjustment effective July
1 of each year. The poverty income
guidelines prescribed by the Department of Health and Human Services
shall be used for all States, as defined
in this section, except for Alaska and
Hawaii. Separate poverty income
guidelines are prescribed for Alaska
and Hawaii.
Pregnant women means women determined to have one or more embryos or
fetuses in utero.
Price adjustment means an adjustment
made by the State agency, in accordance with the vendor agreement, to the
purchase price on a food instrument
after it has been submitted by a vendor
for redemption to ensure that the payment to the vendor for the food instrument complies with the State agency’s
price limitations.
Primary contract infant formula means
the specific infant formula for which
manufacturers submit a bid to a State
agency in response to a rebate solicitation and for which a contract is awarded by the State agency as a result of
that bid.
Program means the Special Supplemental Nutrition Program for Women,
Infants and Children (WIC) authorized
by section 17 of the Child Nutrition Act
of 1966, as amended.
Proxy means any person designated
by a woman participant, or by a parent
or caretaker of an infant or child participant, to obtain and transact food
instruments or cash-value vouchers or
to obtain supplemental foods on behalf
of a participant. The proxy must be
designated consistent with the State
agency’s procedures established pursuant to § 246.12(r)(1). Parents or caretakers applying on behalf of child and
infant participants are not proxies.
Rebate means the amount of money
refunded under cost containment procedures to any State agency from the
manufacturer of the particular food
product as the result of the purchase of
the supplemental food with a voucher
or other purchase instrument by a participant in each State agency’s program. Such rebates shall be payments
made subsequent to the exchange of a
food instrument for food.
Remote Indian or Native village means
an Indian or Native village that is located in a rural area, has a population
of less than 5,000 inhabitants, and is
not accessible year-round by means of
a public road (as defined in 23 U.S.C.
101).
Routine monitoring means overt, onsite monitoring during which program
representatives identify themselves to
vendor personnel.
Secretary means the Secretary of Agriculture.
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Food and Nutrition Service, USDA
§ 246.2
SFPD means the Supplemental Food
Programs Division of the Food and Nutrition Service of the U.S. Department
of Agriculture.
Sign or signature means a handwritten
signature on paper or an electronic signature. If the State agency chooses to
use electronic signatures, the State
agency must ensure the reliability and
integrity of the technology used and
the security and confidentiality of
electronic signatures collected in accordance with sound management practices, and applicable Federal law and
policy, and the confidentiality requirements in § 246.26.
Single-function
equipment
means
Point-of-Sale
equipment,
such
as
barcode scanners, card readers, PIN
pads and printers, provided to an authorized WIC vendor solely for use with
the WIC Program.
State means any of the fifty States,
the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa, or the
Commonwealth of the Northern Mariana Islands.
State agency means the health department or comparable agency of each
State; an Indian tribe, band or group
recognized by the Department of the
Interior; an intertribal council or
group which is an authorized representative of Indian tribes, bands or groups
recognized by the Department of the
Interior and which has an ongoing relationship with such tribes, bands or
groups for other purposes and has contracted with them to administer the
Program; or the appropriate area office
of the IHS.
State alliance means two or more
State agencies that join together for
the purpose of procuring infant formula under the Program by soliciting
competitive bids for infant formula.
State Plan means a plan of Program
operation and administration that describes the manner in which the State
agency intends to implement and operate all aspects of Program administration within its jurisdiction in accordance with § 246.4.
Statewide EBT means the State agency has converted all WIC clinics to an
EBT delivery method and all authorized vendors are capable of transacting
EBT purchases.
Supplemental foods means those foods
containing nutrients determined by nutritional research to be lacking in the
diets of pregnant, breastfeeding and
postpartum women, infants, and children, and foods that promote the
health of the population served by the
WIC Program as indicated by relevant
nutrition science, public health concerns, and cultural eating patterns, as
prescribed by the Secretary in § 246.10.
Supplemental Nutrition Assistance Program (SNAP), formerly known as the
Food Stamp Program, is the program
authorized by the Food and Nutrition
Act of 2008 (7 U.S.C. 2011, et. seq.), in
which eligible households receive benefits that can be used to purchase food
items from authorized retail stores and
farmers’ markets.
USDA implementing regulations include the following: 2 CFR part 400,
Uniform Administrative Requirements,
Cost Principles, and Audit Requirements for Federal Awards; 2 CFR part
415, General Program Administrative
Regulations; 2 CFR part 416, General
Program Administrative Regulations
for Grants and Cooperative Agreements
to State and Local Governments; and 2
CFR part 418, New Restrictions on Lobbying.
Vendor means a sole proprietorship,
partnership, cooperative association,
corporation, or other business entity
operating one or more stores authorized by the State agency to provide authorized supplemental foods to participants under a retail food delivery system. Each store operated by a business
entity constitutes a separate vendor
and must be authorized separately
from other stores operated by the business entity. Each store must have a
single, fixed location, except when the
authorization of mobile stores is necessary to meet the special needs described in the State agency’s State
Plan
in
accordance
with
§ 246.4(a)(14)(xiv).
Vendor authorization means the process by which the State agency assesses,
selects, and enters into agreements
with stores that apply or subsequently
reapply to be authorized as vendors.
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§ 246.3
7 CFR Ch. II (1–1–18 Edition)
Vendor limiting criteria means criteria
established by the State agency to determine the maximum number and distribution of vendors it authorizes pursuant to § 246.12(g)(2).
Vendor
overcharge
means
intentionally or unintentionally charging
the State agency more for authorized
supplemental foods than is permitted
under the vendor agreement. It is not a
vendor overcharge when a vendor submits a food instrument for redemption
and the State agency makes a price adjustment to the food instrument.
Vendor peer group system means a
classification of authorized vendors
into groups based on common characteristics or criteria that affect food
prices, for the purpose of applying appropriate competitive price criteria to
vendors at authorization and limiting
payments for food to competitive levels.
Vendor selection criteria means the criteria established by the State agency
to select individual vendors for authorization consistent with the requirements in § 246.12(g)(3) and (g)(4).
Vendor violation means any intentional or unintentional action of a vendor’s current owners, officers, managers, agents, or employees (with or
without the knowledge of management) that violates the vendor agreement or Federal or State statutes, regulations, policies, or procedures governing the Program.
WIC 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.
WIC-eligible nutritionals for participants with qualifying conditions (hereafter
referred
to
as
‘‘WIC-eligible
nutritionals) means certain enteral
products that are specifically formulated to provide nutritional support for
individuals with a qualifying condition, when the use of conventional
foods is precluded, restricted, or inadequate. Such WIC-eligible nutritionals
must serve the purpose of a food, meal
or diet (may be nutritionally complete
or incomplete) and provide a source of
calories and one or more nutrients; be
designed for enteral digestion via an
oral or tube feeding; and may not be a
conventional food, drug, flavoring, or
enzyme. WIC-eligible nutritionals include many, but not all, products that
meet the definition of medical food in
Section 5(b)(3) of the Orphan Drug Act
(21 U.S.C. 360ee(b)(3)).
[50 FR 6121, Feb. 13, 1985; 50 FR 8098, Feb. 28,
1985]
EDITORIAL NOTE: For FEDERAL REGISTER citations affecting § 246.2, see the List of CFR
Sections Affected, which appears in the
Finding Aids section of the printed volume
and at www.fdsys.gov.
§ 246.3 Administration.
(a) Delegation to FNS. Within the Department, FNS shall act on behalf of
the Department in the administration
of the Program. Within FNS, SFPD
and the Regional Offices are responsible for Program administration. FNS
shall provide assistance to State and
local agencies and evaluate all levels of
Program operations to ensure that the
goals of the Program are achieved in
the most effective and efficient manner
possible.
(b) Delegation to the State agency. The
State agency is responsible for the effective and efficient administration of
the Program in accordance with the requirements of this part; the Department’s regulations governing nondiscrimination (7 CFR parts 15, 15a, and
15b); governing administration of
grants (2 CFR part 200, subparts A
through F and USDA implementing
regulations 2 CFR part 400 and part
415); governing non-procurement debarment/suspension (2 CFR part 180, OMB
Guidelines to Agencies on Governmentwide Debarment and Suspension and
USDA implementing regulations 2 CFR
part 417); governing restrictions on lobbying (2 CFR part 200, subpart E and
USDA implementing regulations 2 CFR
part 400, part 415, and part 418); and
governing the drug-free workplace requirements (2 CFR part 182, Government-wide Requirements for Drug-Free
Workplace); FNS guidelines; and, instructions issued under the FNS Directives Management System. The State
agency shall provide guidance to local
agencies on all aspects of Program operations.
(c) Agreement and State Plan. (1) Each
State agency desiring to administer
the Program shall annually submit a
State Plan and enter into a written
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Food and Nutrition Service, USDA
§ 246.3
agreement with the Department for administration of the Program in the jurisdiction of the State agency in accordance with the provisions of this
part.
(2) The written agreement shall include a certification regarding lobbying and, if applicable, a disclosure of
lobbying activities, as required by 2
CFR part 200, subpart E and USDA implementing regulations 2 CFR part 400,
part 415, and part 418.
(3) The written agreement must include a statement that supports full
use of Federal funds provided to State
agencies for the administration of the
WIC Program, and excludes such funds
from State budget restrictions or limitations including hiring freezes, work
furloughs, and travel restrictions.
(d) State agency eligibility. A State
agency shall be ineligible to participate in the WIC Program if State or
local sales tax is collected on WIC food
purchases in the area in which it administers the program, except that, if
sales tax is collected on WIC food purchases by sovereign Indian entities
which are not State agencies, the State
agency shall remain eligible if any vendors collecting such tax are disqualified.
(e) State staffing standards. Each
State agency shall ensure that sufficient staff is available to administer an
efficient and effective Program including, but not limited to, the functions of
nutrition education, breastfeeding promotion and support, certification, food
delivery, fiscal reporting, monitoring,
and training. Based on the June participation of the previous fiscal year,
each State agency, as a minimum,
shall employ the following staff:
(1) A full-time or equivalent administrator when the monthly participation
level exceeds 1,500, or a half-time or
equivalent administrator when the
monthly participation exceeds 500.
(2) At least one full-time or equivalent Program specialist for each 10,000
participants above 1,500, but the State
agency need not employ more than
eight Program specialists unless the
State agency considers it necessary.
Program specialists should be utilized
for providing fiscal management and
technical assistance, monitoring vendors, reviewing local agencies, train-
ing, and nutritional services, or other
Program duties as assigned by the
State agency.
(3) For nutrition-related services, one
full-time or equivalent nutritionist
when the monthly participation is
above 1,500, or a half-time or equivalent nutritionist when the monthly
participation exceeds 500. The nutritionist shall be named State WIC Nutrition Coordinator and shall meet
State personnel standards and qualifications in paragraphs (e)(3) (i), (ii),
(iii), (iv), or (v) of this section and have
the
qualifications
in
paragraph
(e)(3)(vi) of this section. Upon request,
an exception to these qualifications
may be granted by FNS. The State WIC
Nutrition Coordinator shall—
(i) Hold a Master’s degree with emphasis in food and nutrition, community nutrition, public health nutrition,
nutrition education, human nutrition,
nutrition science or equivalent and
have at least two years responsible experience as a nutritionist in education,
social service, maternal and child
health, public health, nutrition, or dietetics; or
(ii) Be registered or eligible for registration with the American Dietetic
Association and have at least two
years experience; or
(iii) Have at least a Bachelor of
Science or Bachelor of Arts degree,
from an accredited four-year institution, with emphasis in food and nutrition, community nutrition, public
health nutrition, nutrition education,
human nutrition, nutrition science or
equivalent and have at least three
years of responsible experience as a nutritionist in education, social service,
maternal and child health, public
health nutrition, or dietetics; or
(iv) Be qualified as a Senior Public
Health Nutritionist under the Department of Health and Human Services
guidelines; or
(v) Meet the IHS standards for a Public Health Nutritionist; and
(vi) Have at least one of the following: Program development skills,
education background and experience
in the development of educational and
training resource materials, community action experience, counseling
skills or experience in participant advocacy.
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31
§ 246.4
7 CFR Ch. II (1–1–18 Edition)
(4) A designated breastfeeding promotion coordinator, to coordinate
breastfeeding promotion efforts identified in the State plan in accordance
with the requirement of § 246.4(a)(9) of
this part. The person to whom the
State agency assigns this responsibility may perform other duties as
well.
(5) A staff person designated for food
delivery system management. The person to whom the State agency assigns
this responsibility may perform other
duties as well.
(6) The State agency shall enforce
hiring practices which comply with the
nondiscrimination criteria set forth in
§ 246.8. The hiring of minority staff is
encouraged.
(f) Delegation to local agency. The
local agency shall provide Program
benefits to participants in the most effective and efficient manner, and shall
comply with this part, the Department’s regulations governing nondiscrimination (7 CFR parts 15, 15a,
15b), the regulations governing the administration of grants (2 CFR part 200,
subpart A–F and USDA implementing
regulations 2 CFR part 400 and part
415), Office of Management and Budget
Circular A–130, and State agency and
FNS guidelines and instructions.
[50 FR 6121, Feb. 13, 1985; 50 FR 8098, Feb. 28,
1985, as amended at 52 FR 21236, June 4, 1987;
59 FR 11499, Mar. 11, 1994; 65 FR 83277, Dec. 29,
2000; 71 FR 56728, Sept. 27, 2006; 76 FR 37983,
June 29, 2011; 76 FR 59888, Sept. 28, 2011; 81 FR
10449, Mar. 1, 2016; 81 FR 66494, 66495, Sept. 28,
2016]
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Subpart B—State and Local
Agency Eligibility
§ 246.4 State plan.
(a) Requirements. By August 15 of each
year, each State agency shall submit
to FNS for approval a State Plan for
the following fiscal year as a prerequisite to receiving funds under this
section. The State agency may submit
the State Plan in the format provided
by FNS guidance. Alternatively, the
State agency may submit the Plan in
combination with other federally required planning documents or develop
its own format, provided that the information required below is included. FNS
requests advance notification that a
State agency intends to use an alternative format. The State Plan shall be
signed by the State designated official
responsible for ensuring that the Program is operated in accordance with
the State Plan. FNS will provide written approval or denial of a completed
State Plan or amendment within 30
days of receipt. Within 15 days after
FNS receives an incomplete Plan, FNS
will notify the State agency that additional information is needed to complete the Plan. Any disapproval will be
accompanied by a statement of the reasons for the disapproval. After receiving approval of the State Plan, each
State agency shall only submit to FNS
for approval substantive changes in the
State Plan. A complete and approved
Plan shall include:
(1) An outline of the State agency’s
goals and objectives for improving Program operations, to include EBT and/or
EBT implementation.
(2) A budget for nutrition services
and administration funds, and an estimate of food expenditures.
(3) An estimate of Statewide participation for the coming fiscal year by
category of women, infants and children.
(4) The State agency staffing pattern.
(5) An Affirmative Action Plan which
includes—
(i) A list of all areas and special populations, in priority order based on relative need, within the jurisdiction of
the State agency, the State agency’s
plans to initiate or expand operations
under the Program in areas most in
need of supplemental foods, including
plans to inform nonparticipating local
agencies of the availability and benefits of the Program and the availability
of technical assistance in implementing the Program, and a description of how the State agency will take
all reasonable actions to identify potential local agencies and encourage
agencies to implement or expand operations under the Program within the
following year in the neediest one-third
of all areas unserved or partially
served;
(ii) An estimate of the number of potentially eligible persons in each area
and a list of the areas in the Affirmative Action Plan which are currently
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Food and Nutrition Service, USDA
§ 246.4
operating the Program and their current participation, which participant
priority levels as specified in § 246.7 are
being reached in each of these areas,
and which areas in the Affirmative Action Plan are currently operating
CSFP and their current participation;
and
(iii) A list of the names and addresses
of all local agencies.
(6) Plans to provide program benefits
to eligible migrant farmworkers and
their families, to Indians, and to homeless individuals.
(7) The State agency’s plans, to be
conducted in cooperation with local
agencies, for informing eligible persons
of the availability of Program benefits,
including the eligibility criteria for
participation, the location of local
agencies operating the Program, and
the
institutional
conditions
of
§ 246.7(n)(1)(i) of this part, with emphasis on reaching and enrolling eligible
women in the early months of pregnancy and migrants. Such information
shall be publicly announced by the
State agency and by local agencies at
least annually. Such information shall
also be distributed to offices and organizations that deal with significant
numbers of potentially eligible persons, including health and medical organizations, hospitals and clinics, welfare and unemployment offices, social
service agencies, farmworker organizations, Indian tribal organizations, organizations and agencies serving homeless individuals, and religious and community organizations in low-income
areas.
(8) A description of how the State
agency plans to coordinate program operations with other services or programs that may benefit participants
in, or applicants for, the program.
(9) The State agency’s nutrition education goals and action plans to include:
(i) A description of the methods that
will be used to provide drug and other
harmful substance abuse information,
to promote and support breastfeeding,
and to meet the special nutrition education needs of migrant farmworkers
and their families, Indians, and homeless persons.
(ii) State agencies have the option to
provide nutrition education materials
to institutions participating in the
CACFP at no cost, as long as a written
agreement for sharing such materials
is in place between the relevant WIC
and CACFP entities. State agencies
may initiate a sharing agreement with
their State-level CACFP counterparts
that would apply statewide, or may authorize their local agencies or clinics
to initiate a sharing agreement at the
local level with their local level
CACFP counterparts.
(10) For Indian State or local agencies that wish to apply for the alternate income determination procedure
in accordance with § 246.7(d)(2)(vii),
documentation that the majority of Indian household members have incomes
below eligibility criteria.
(11) A copy of the procedure manual
developed by the State agency for guidance to local agencies in operating the
Program. The manual shall include—
(i) Certification procedures, including:
(A) A list of the specific nutritional
risk criteria by priority level which explains how a person’s nutritional risk
is determined;
(B) Hematological data requirements
including timeframes for the collection
of such data;
(C) The procedures for requiring
proof of pregnancy, consistent with
§ 246.7(c)(2)(ii), if the State agency
chooses to require such proof;
(D) The State agency’s income guidelines for Program eligibility;
(E) Adjustments to the participant
priority system (see § 246.7(e)(4)) to accommodate
high-risk
postpartum
women or the addition of Priority VII;
and,
(F) Alternate language for the statement of rights and responsibilities
which is provided to applicants, parents, or caretakers when applying for
benefits as outlined in § 246.7(i)(10) and
(j)(2)(i) through (j)(2)(iii). This alternate language must be approved by
FNS before it can be used in the required statement.
(ii) Methods for providing nutrition
education, including breastfeeding promotion and support, to participants.
Nutrition education will include information on drug abuse and other harmful substances. Participants will include homeless individuals.
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§ 246.4
7 CFR Ch. II (1–1–18 Edition)
(iii) Instructions concerning all food
delivery operations performed at the
local level, including the list of acceptable foods and their maximum monthly
quantities
as
required
by
§ 246.10(b)(2)(i).
(iv) Instructions for providing all
records and reports which the State
agency requires local agencies to maintain and submit; and
(v) Instructions on coordinating operations under the program with drug
and other harmful substance abuse
counseling and treatment services.
(12) A description of the State agency’s financial management system.
(13) A description of how the State
agency will distribute nutrition services and administration funds, including start-up funds, to local agencies operating under the Program.
(14) A description of the food delivery
system as it operates at the State
agency level, including—
(i) Type of system. All food delivery
systems in use within the State agency’s jurisdiction;
(ii) Vendor limiting and selection criteria. Vendor limiting criteria, if used
by the State agency, and the vendor selection criteria established by the
State agency consistent with the requirements in § 246.12(g)(3) and (g)(4);
(iii) A sample vendor, farmer and/or
farmers’ market, if applicable, agreement.
The sample vendor agreement must include the sanction schedule, the process for notification of violations in accordance with § 246.12(l)(3), and the
State agency’s policies and procedures
on incentive items in accordance with
§ 246.12(g)(3)(iv), which may be incorporated as attachments or, if the sanction schedule, the process for notification of violations, or policies on incentive items are in the State agency’s
regulations, through citations to the
regulations. State agencies that intend
to delegate signing of vendor, farmer
and/or farmers’ market agreements to
local agencies must describe the State
agency supervision and instruction
that will be provided to ensure the uniformity and quality of local agency activities;
(iv) Vendor monitoring. The system for
monitoring vendors to ensure compliance and prevent fraud, waste, and program noncompliance, and the State
agency’s plans for improvement in the
coming year in accordance with
§ 246.12(j). The State agency must also
include the criteria it will use to determine which vendors will receive routine monitoring visits. State agencies
that intend to delegate any aspect of
vendor monitoring responsibilities to a
local agency or contractor must describe the State agency supervision
and instruction that will be provided to
ensure the uniformity and quality of
vendor monitoring;
(v) Farmer monitoring. The system for
monitoring farmers and/or farmers’
markets within its jurisdiction, if applicable, for compliance with program
requirements;
(vi) Options regarding trafficking convictions. The option exercised by the
State agency to sanction vendors pursuant to § 246.12(l)(1)(i).
(vii) Food instruments and cash-value
vouchers. A facsimile of the food instrument and cash-value voucher, if used,
and a description of the system the
State agency will use to account for
the disposition of food instruments and
cash value vouchers in accordance with
§ 246.12(q);
(viii) Names of contractors. The names
of companies, excluding authorized
vendors, with whom the State agency
has contracted to participate in the operation of the food delivery system;
(ix) Nutrition services and administration funds conversion For State agencies
applying for authority to convert food
funds to nutrition services and administration funds under § 246.16(g), a full
description of their proposed cost-cutting system or system modification;
(x) Homeless participants. If the State
agency plans to adapt its food delivery
system to accommodate the needs of
homeless individuals, a description of
such adaptations;
(xi) Infant formula cost containment. A
description of any infant formula cost
containment system. A State agency
must submit a State Plan or Plan
amendment if it is attempting to structure and justify a system that is not a
single-supplier competitive bidding
system for infant formula in accordance with § 246.16a(d); is requesting a
waiver for an infant formula cost containment system under § 246.16a(e); or,
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Food and Nutrition Service, USDA
§ 246.4
is planning to change or modify its current system or implement a system for
the first time. The amendment must be
submitted at least 90 days before the
proposed effective date of the system
change. The plan amendment must include documentation for requests for
waivers based on interference with efficient or effective program operations;
a cost comparison analysis conducted
under § 246.16a(d)(2); and a description
of the proposed cost containment system. If FNS disputes supporting plan
amendment documentation, it will
deem the Plan amendment incomplete
under this paragraph (a), and will provide the State agency with a statement
outlining disputed issues within 15
days of receipt of the Plan amendment.
The State agency may not enter into
any infant formula cost containment
contract until the disputed issues are
resolved and FNS has given its consent. If necessary, FNS may grant a
postponement of implementation of an
infant formula cost containment system under § 246.16a(f). If at the end of
the postponement period issues remain
unresolved the State agency must proceed with a cost containment system
judged by FNS to comply with the provisions of this part. If the State agency
does not comply, it will be subject to
the penalties set forth in § 246.16a(i);
(xii) Vendor, farmer and/or farmers’
market training. The procedures the
State agency will use to train vendors
(in accordance with § 246.12(i)), farmers
and/or farmers’ markets (in accordance
with § 246.12(v)). State agencies that intend to delegate any aspect of training
to a local agency, contractor, vendor or
farmer representative must describe
the supervision and instructions that
will be provided by the State agency to
ensure the uniformity and quality of
vendor, farmer and/or farmers’ market
training;
(xiii) Food instrument and cash-value
voucher security. A description of the
State agency’s system for ensuring
food instrument and cash-value voucher
security
in
accordance
with
§ 246.12(p);
(xiv) Participant access determination
criteria. A description of the State
agency’s participant access determination criteria consistent with § 246.12(l);
and
(xv) Mobile stores. The special needs
necessitating the authorization of mobile stores, if the State agency chooses
to authorize such stores.
(xvi) Vendor cost containment. A description of the State agency’s vendor
peer group system, competitive price
criteria, and allowable reimbursement
levels that demonstrates that the
State agency is in compliance with the
cost
containment
provisions
in
§ 246.12(g)(4); information on non-profit
above-50-percent vendors that the
State agency has exempted from competitive price criteria and allowable reimbursement levels in § 246.12(g)(4)(iv);
a justification and documentation supporting the State agency’s request for
an exemption from the vendor peer
group requirement in § 246.12(g)(4), if
applicable; and, if the State agency authorizes any above-50-percent vendors,
information required by FNS to determine whether the State agency’s vendor cost containment system meets the
requirements in § 246.12(g)(4)(i).
(xvii) Other cost containment systems.
A description of any other food cost
containment systems (such as juice
and cereal rebates and food item restrictions).
(xviii) List of infant formula wholesalers, distributors, and retailers. The
policies and procedures for compiling
and distributing to authorized WIC retail vendors, on an annual or more frequent
basis,
as
required
by
§ 246.12(g)(11), a list of infant formula
wholesalers, distributors, and retailers
licensed in the State in accordance
with State law (including regulations),
and infant formula manufacturers registered with the Food and Drug Administration (FDA) that provide infant formula. The vendor may provide only the
authorized infant formula which the
vendor has obtained from a source included on the list described in
§ 246.12(g)(11) to participants in exchange for food instruments specifying
infant formula.
(xix) A description of how the State
agency will replace lost, stolen, or
damaged EBT cards and transfer the
associated benefits within seven business days.
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§ 246.4
7 CFR Ch. II (1–1–18 Edition)
(xx) A description of the procedures
established by the State agency to provide customer service during non-business hours that enable participants or
proxies to report a lost, stolen, or damaged card, report other card or benefit
issues, receive information on the EBT
food balance and receive the current
benefit end date. The procedures shall
address how the State agency will respond to reports of a lost, stolen, or
damaged card within one business day
of the date of report.
(15) The State agency’s procedures
for accepting and processing vendor applications outside of its established
timeframes if the State agency determines there will otherwise be inadequate participant access to the WIC
Program.
(16) The State agency’s plans to prevent and identify dual participation in
accordance with § 246.7(l)(1)(i) and
(l)(1)(ii). In States where the Program
and the CSFP operate in the same
area, or where an Indian State agency
operates a Program in the same area as
a geographic State agency, a copy of
the written agreement between the
State agencies for the detection and
prevention of dual participation shall
be submitted.
(17) A description of the procedures
the State will use to comply with the
civil rights requirements described in
§ 246.8, including the processing of discrimination complaints.
(18) A copy of the State agency’s fair
hearing procedures for participants and
the administrative appeal procedures
for local agencies, food vendors, farmers and farmers’ markets.
(19) The State agency’s plan to ensure that participants receive required
health and nutrition assessments when
certified for a period of greater than
six months.
(20) The State agency’s plan to reach
and enroll migrants, and eligible
women in the early months of pregnancy.
(21) The State agency’s plan to establish, to the extent practicable, that
homeless facilities, and institutions if
it chooses to make the Program available to them, meet the conditions established in § 246.7(n)(1)(i) of this part,
if residents of such accommodations
are to be eligible to receive WIC Program benefits.
(22) A plan to provide program benefits to unserved infants and children
under the care of foster parents, protective services, or child welfare authorities, including infants exposed to
drugs perinatally.
(23) A plan to improve access to the
Program for participants and prospective applicants who are employed or
who reside in rural areas, by addressing
their special needs through the adoption or revision of procedures and practices to minimize the time participants
and applicants must spend away from
work and the distances participants
and applicants must travel. The State
agency shall also describe any plans for
issuance of food instruments and cashvalue vouchers to employed or rural
participants, or to any other segment
of the participant population, through
means other than direct participant
pick-up, pursuant to § 246.12(r)(4). Such
description shall also include measures
to ensure the integrity of Program
services and fiscal accountability. The
State agency will also describe its policy for approving transportation of participants to and from WIC clinics.
(24) Assurance that each local agency
and any subgrantees of the State agency and/or local agencies are in compliance with the requirements of 2 CFR
part 180, OMB Guidelines to Agencies
on Government-wide Debarment and
Suspension and USDA implementing
regulations 2 CFR part 417 regarding
nonprocurement debarment/suspension.
(25) A description of the State agency’s plans to provide and maintain a
drug-free workplace in compliance
with requirements in 2 CFR part 180,
Government-wide Requirements for
Drug-Free Workplace (Financial Assistance) and USDA implementing regulation 2 CFR part 421.
(26) A list of all organizations with
which the State agency or its local
agencies has executed or intends to
execute a written agreement pursuant
to § 246.26(h) authorizing the use and
disclosure of confidential applicant and
participant information for non-WIC
purposes.
(27) The State agency’s policies and
procedures for preventing conflicts of
interest at the local agency or clinic
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Food and Nutrition Service, USDA
§ 246.5
level in a reasonable manner. At a minimum, this plan must prohibit the following WIC certification practices by
local agency or clinic employees, or
provide effective alternative policies
and procedures when such prohibition
is not possible:
(i) Certifying oneself;
(ii) Certifying relatives or close
friends; or,
(iii) One employee determining eligibility for all certification criteria and
issuing food instruments, cash-value
vouchers or supplemental food for the
same participant.
(28) The State agency’s plan for collecting and maintaining information
on cases of participant and employee
fraud and abuse. Such information
should include the nature of the fraud
detected and the associated dollar
losses.
(29) The State agency’s Universal
Identifier number.
(b) Public comment. The State agency
shall establish a procedure under which
members of the general public are provided an opportunity to comment on
the development of the State agency
plan.
(c) Amendments. At any time after approval, the State agency may amend
the State Plan to reflect changes. The
State agency shall submit the amendments to FNS for approval. The amendments shall be signed by the State designated official responsible for ensuring that the Program is operated in accordance with the State Plan.
(d) Retention of copy. A copy of the
approved State Plan or the WIC portion of the State’s composite plan of
operations shall be kept on file at the
State agency for public inspection.
[50 FR 6121, Feb. 13, 1985]
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EDITORIAL NOTE For FEDERAL REGISTER citations affecting § 246.4, see the List of CFR
Sections Affected, which appears in the
Finding Aids section of the printed volume
and at www.fdsys.gov.
§ 246.5 Selection of local agencies.
(a) General. This section sets forth
the procedures the State agency shall
perform in the selection of local agencies and the expansion, reduction, and
disqualification of local agencies already in operation. In making decisions to intitiate, continue, and dis-
continue the participation of local
agencies, the State agency shall give
consideration to the need for Program
benefits as delineated in the Affirmative Action Plan.
(b) Application of local agencies. The
State agency shall require each agency, including subdivisions of the State
agency, which desires approval as a
local agency, to submit a written local
agency application. After the receipt of
an incomplete application, the State
agency shall provide written notification to the applicant agency of the additional information needed. After the
receipt of a complete application, the
State agency shall notify the applicant
agency in writing of the approval or
disapproval of its application. When an
application is disapproved, the State
agency shall advise the applicant agency of the reasons for disapproval and of
the right to appeal as set forth in
§ 246.18. When an agency submits an application and there are no funds to
serve the area, the applicant agency
shall be notified that there are currently no funds available for Program
initiation or expansion. The applicant
agency shall be notified by the State
agency when funds become available.
(c) Program initiation and expansion.
The State agency shall meet the following requirements concerning Program initiation and expansion:
(1) The State agency will consider
the Affirmative Action Plan (see
§ 246.4(a)(5)) when funding local agencies and expanding existing operations,
and may consider how much of the current need is being met at each priority
level. The selection criteria cited in
paragraph (d)(1) of this section shall be
applied to each area or special population before eliminating that area
from consideration and serving the
next area of special population. The
State agency shall consider the number
of participants in each priority level
being served by existing local agencies
in determining when it is appropriate
to move into additional areas in the
Affirmative Action Plan or to expand
existing operations in an area. Additionally, the State agency shall consider the total number of people potentially eligible in each area compared to
the number being served.
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§ 246.5
7 CFR Ch. II (1–1–18 Edition)
(2) The State agency shall provide a
written justification to FNS for not
funding an agency to serve the highest
priority area or special population.
Such justification may include its inability to administer the Program,
lack of interest expressed for operating
the Program, or for those areas or special populations which are under consideration for expansion of an existing
operation, a determination by the
State agency that there is a greater
need for funding an agency serving an
area or special population not operating the Program. The State agency
shall use the participant priority system in § 246.7 as a measurement of
greater need in such determination.
(3) The State agency may fund more
than one local agency to serve the
same area or special population as long
as more than one local agency is necessary to serve the full extent of need
in that area or special population.
(d) Local agency priority system. The
State agency shall establish standards
for the selection of new local agencies.
Such standards shall include the following considerations:
(1) The State agency shall consider
the following priority system, which is
based on the relative availability of
health and administrative services, in
the selection of local agencies:
(i) First consideration shall be given
to a public or a private nonprofit
health agency that will provide ongoing, routine pediatric and obstetric
care and administrative services.
(ii) Second consideration shall be
given to a public or a private nonprofit
health or human service agency that
will enter into a written agreement
with another agency for either ongoing, routine pediatric and obstetric
care or administrative services.
(iii) Third consideration shall be
given to a public or private nonprofit
health agency that will enter into a
written agreement with private physicians, licensed by the State, in order to
provide ongoing, routine pediatric and
obstetric care to a specific category of
participants (women, infants or children).
(iv) Fourth consideration shall be
given to a public or private nonprofit
human service agency that will enter
into a written agreement with private
physicians, licensed by the State, to
provide ongoing, routine pediatric and
obstetric care.
(v) Fifth consideration shall be given
to a public or private nonprofit health
or human service agency that will provide ongoing, routine pediatric and obstetric care through referral to a
health provider.
(2) The State agency must, when
seeking new local agencies, publish a
notice in the local media (unless it has
received an application from a local
public or nonprofit private health
agency that can provide adequate services). The notice will include a brief explanation of the Program, a description
of the local agency priority system
(outlined in this paragraph (d)), and a
request that potential local agencies
notify the State agency of their interest. In addition, the State agency will
contact all potential local agencies to
make sure they are aware of the opportunity to apply. If an application is not
submitted within 30 days, the State
agency may then select a local agency
in another area. If sufficient funds are
available, a State agency will give notice and consider applications outside
the local area at the same time.
(e) Disqualification of local agencies. (1)
The State agency may disqualify a
local agency—
(i) When the State agency determines
noncompliance with Program regulations;
(ii) When the State’s Program funds
are insufficient to support the continued operation of all its existing local
agencies at their current participation
level; or
(iii) When the State agency determines, following a review of local agency credentials in accordance with paragraph (f) of this section, that another
local agency can operate the Program
more effectively and efficiently.
(2) The State agency may establish
its own criteria for disqualification of
local agencies. The State agency shall
notify the local agency of any State-established criteria. In addition to any
State established criteria, the State
agency shall consider, at a minimum—
(i) The availability of other community resources to participants and the
cost efficiency and cost effectiveness of
the local agency in terms of both food
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Food and Nutrition Service, USDA
§ 246.6
and nutrition services and administration costs;
(ii) The percentages of participants
in each priority level being served by
the local agency and the percentage of
need being met in each participant category;
(iii) The relative position of the area
or special population served by the
local agency in the Affirmative Action
Plan;
(iv) The local agency’s place in the
priority system in paragraph (d)(1) of
this section; and
(v) The capability of another local
agency or agencies to accept the local
agency’s participants.
(3) When disqualifying a local agency
under the Program, the State agency
shall—
(i) Make every effort to transfer affected participants to another local
agency without disruption of benefits;
(ii) Provide the affected local agency
with written notice not less than 60
days in advance of the pending action
which includes an explanation of the
reasons for disqualification, the date of
disqualification, and, except in cases of
the expiration of a local agency’s
agreement, the local agency’s right to
appeal as set forth in § 246.18; and
(iii) Ensure that the action is not in
conflict with any existing written
agreements between the State and the
local agency.
(f) Periodic review of local agency
qualifications. The State agency may
conduct periodic reviews of the qualifications of authorized local agencies
under its jurisdiction. Based upon the
results of such reviews the State agency may make appropriate adjustments
among the participating local agencies,
including the disqualification of a local
agency when the State agency determines that another local agency can
operate the Program more effectively
and efficiently. In conducting such reviews, the State agency shall consider
the factors listed in paragraph (e)(2) of
this section in addition to whatever
criteria it may develop. The State
agency shall implement the procedures
established in paragraph (e)(3) of this
section when
agency.
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local
[50 FR 6121, Feb. 13, 1985; 50 FR 8098, Feb. 28,
1985; 65 FR 53527, Sept. 5, 2000; 71 FR 56728,
Sept. 27, 2006]
§ 246.6 Agreements with local agencies.
(a) Signed written agreements. The
State agency shall enter into a signed
written agreement with each local
agency, including subdivisions of the
State agency, which sets forth the
local agency’s responsibilities for Program operations as prescribed in this
part. Copies of the agreement shall be
kept on file at both the State and local
agencies for purposes of review and
audit in accordance with §§ 246.19 and
246.20. Neither the State agency nor the
local agency has an obligation to renew
the agreement. The expiration of an
agreement is not subject to appeal. The
State agency shall provide local agencies with advance written notice of the
expiration of an agreement as required
under §§ 246.5(e)(3)(ii) and 246.18(b)(1).
(b) Provisions of agreement. The agreement between the State agency and
each local agency shall ensure that the
local agency—
(1) Complies with all the fiscal and
operational requirements prescribed by
the State agency pursuant to debarment and suspension requirements and
if applicable, the lobbying restrictions
of 2 CFR part 200, subpart E, and USDA
implementing regulations 2 CFR part
400, part 415, and part 417, and FNS
guidelines and instructions, and provides on a timely basis to the State
agency all required information regarding fiscal and Program information;
(2) Has a competent professional authority on the staff of the local agency
and the capabilities necessary to perform the certification procedures;
(3) Makes available appropriate
health services to participants and informs applicants of the health services
which are available;
(4) Prohibits smoking in the space
used to carry out the WIC Program
during the time any aspect of WIC
services are performed;
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§ 246.7
7 CFR Ch. II (1–1–18 Edition)
(5) Has a plan for continued efforts to
make health services available to participants at the clinic or through written agreements with health care providers when health services are provided through referral;
(6) Provides nutrition education services, including breastfeeding promotion
and support, to participants, in compliance with § 246.11 and FNS guidelines
and instructions;
(7) Implements a food delivery system prescribed by the State agency
pursuant to § 246.12 and approved by
FNS;
(8) Maintains complete, accurate,
documented and current accounting of
all Program funds received and expended;
(9) Maintains on file and has available for review, audit, and evaluation
all criteria used for certification, including information on the area served,
income standards used, and specific
criteria used to determine nutritional
risk; and
(10) Does not discriminate against
persons on the grounds of race, color,
national origin, age, sex or handicap;
and compiles data, maintains records
and submits reports as required to permit effective enforcement of the nondiscrimination laws.
(c) Indian agencies. Each Indian State
agency shall ensure that all local agencies under its jurisdiction serve primarily Indian populations.
(d) Health and human service agencies.
When a health agency and a human
service agency comprise the local agency, both agencies shall together meet
all the requirements of this part and
shall enter into a written agreement
which outlines all Program responsibilities of each agency. The agreement
shall be approved by the State agency
during the application process and
shall be on file at both the State and
local agency. No Program funds shall
be used to reimburse the health agency
for the health services provided. However, costs of certification borne by the
health agency may be reimbursed.
(e) Health or human service agencies
and private physicians. When a health or
human service agency and private physician(s) comprise the local agency, all
parties shall together meet all of the
requirements of this part and shall
enter into a written agreement which
outlines the inter-related Program responsibilities between the physician(s)
and the local agency. The agreement
shall be approved by the State agency
during the application process and
shall be on file at both agencies. The
local agency shall advise the State
agency on its application of the
name(s) and address(es) of the private
physician(s) participating and obtain
State agency approval of the written
agreement. A competent professional
authority on the staff of the health or
human service agency shall be responsible for the certification of participants. No Program funds shall be used
to reimburse the private physician(s)
for the health services provided. However, costs of certification data provided by the physician(s) may be reimbursed.
(f) Outreach/Certification In Hospitals.
The State agency shall ensure that
each local agency operating the program within a hospital and/or that has
a cooperative arrangement with a hospital:
(1) Advises potentially eligible individuals that receive inpatient or outpatient
prenatal,
maternity,
or
postpartum services, or that accompany a child under the age of 5 who receives well-child services, of the availability of program services; and
(2) To the extent feasible, provides an
opportunity for individuals who may be
eligible to be certified within the hospital for participation in the WIC Program.
[50 FR 6121, Feb. 13, 1985, as amended at 59
FR 11500, Mar. 11, 1994; 63 FR 63974, Nov. 18,
1998; 76 FR 59889, Sept. 28, 2011; 81 FR 66495,
Sept. 28, 2016]
Subpart C—Participant Eligibility
§ 246.7
Certification of participants.
(a) Integration with health services. To
lend administrative efficiency and participant convenience to the certification process, whenever possible, Program intake procedures shall be combined with intake procedures for other
health programs or services administered by the State and local agencies.
Such merging may include verification
procedures, certification interviews,
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Food and Nutrition Service, USDA
§ 246.7
and income computations. Local agencies shall maintain and make available
for distribution to all pregnant,
postpartum, and breastfeeding women
and to parents or caretakers of infants
and children applying for and participating in the Program a list of local resources for drug and other harmful substance abuse counseling and treatment.
(b) Program referral and access. State
and local agencies shall provide WIC
Program applicants and participants or
their designated proxies with information on other health-related and public
assistance programs, and when appropriate, shall refer applicants and participants to such programs.
(1) The State agency shall provide
each local WIC agency with materials
showing the maximum income limits,
according to family size, applicable to
pregnant women, infants, and children
up to age 5 under the medical assistance program established under Title
XIX of the Social Security Act (in this
section, referred to as the ‘‘Medicaid
Program’’). The local agency shall, in
turn, provide to adult individuals applying or reapplying for the WIC Program for themselves or on behalf of
others, written information about the
Medicaid Program. If such individuals
are not currently participating in Medicaid but appear to have family income
below the applicable maximum income
limits for the program, the local agency shall also refer these individuals to
Medicaid, including the referral of infants and children to the appropriate
entity in the area authorized to determine eligibility for early and periodic
screening, diagnostic, and treatment
(EPSDT) services, and, the referral of
pregnant women to the appropriate entity in the area authorized to determine presumptive eligibility for the
Medicaid Program, if such determinations are being offered by the State.
(2) State agencies shall provide WIC
services at community and migrant
health centers, Indian Health Services
facilities, and other federally health
care supported facilities established in
medically underserved areas to the extent feasible.
(3) Local agencies may provide information about other potential sources
of food assistance in the local area to
adult individuals applying or re-
applying in person for the WIC Program for themselves or on behalf of
others, when such applicants cannot be
served because the Program is operating at capacity in the local area.
(4) Each local agency that does not
routinely schedule appointments shall
schedule appointments for employed
adult individuals seeking to apply or
reapply for participation in the WIC
Program for themselves or on behalf of
others so as to minimize the time such
individuals are absent from the workplace due to such application.
(5) Each local agency shall attempt
to contact each pregnant woman who
misses her first appointment to apply
for participation in the Program in
order to reschedule the appointment.
At the time of initial contact, the local
agency shall request an address and
telephone number where the pregnant
woman can be reached.
(c) Eligibility criteria and basic certification procedures. (1) To qualify for the
Program, infants, children, and pregnant, postpartum, and breastfeeding
women must:
(i) Reside within the jurisdiction of
the State (except for Indian State
agencies). Indian State agencies may
establish a similar requirement. All
State agencies may determine a service area for any local agency, and may
require that an applicant reside within
the service area. However, the State
agency may not use length of residency
as an eligibility requirement.
(ii) Meet the income criteria specified in paragraph (d) of this section.
(iii) Meet the nutritional risk criteria specified in paragraph (e) of this
section.
(2)(i) At certification, the State or
local agency must require each applicant to present proof of residency (i.e.,
location or address where the applicant
routinely lives or spends the night) and
proof of identity. The State or local
agency must also check the identity of
participants, or in the case of infants
or children, the identity of the parent
or guardian, or proxies when issuing
food, cash-value vouchers or food instruments. The State agency may authorize the certification of applicants
when no proof of residency or identity
exists (such as when an applicant or an
applicant’s parent is a victim of theft,
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§ 246.7
7 CFR Ch. II (1–1–18 Edition)
loss, or disaster; a homeless individual;
or a migrant farmworker). In these
cases, the State or local agency must
require the applicant to confirm in
writing his/her residency or identity.
Further, an individual residing in a remote Indian or Native village or an individual served by an Indian tribal organization and residing on a reservation or pueblo may establish proof of
residency by providing the State agency their mailing address and the name
of the remote Indian or Native village.
(ii) For a State agency opting to require proof of pregnancy, the State
agency may issue benefits to applicants who claim to be pregnant (assuming that all other eligibility criteria are met) but whose conditions (as
pregnant) are not visibly noticeable
and do not have documented proof of
pregnancy at the time of the certification interview and determination.
The State agency should then allow a
reasonable period of time, not to exceed 60 days, for the applicant to provide the requested documentation. If
such documentation is not provided as
requested, the woman can no longer be
considered categorically eligible, and
the local agency would then be justified in terminating the woman’s WIC
participation in the middle of a certification period.
(3) A State, a State agency, and an
Indian Tribal Organization (including,
an Indian tribe, band, or group recognized by the Department of the Interior; or an intertribal council or group
which is an authorized representative
of Indian tribes, bands or groups recognized by the Department of the Interior and which has an ongoing relationship with such tribes, bands or groups
for other purposes and has contracted
with them to administer the Program)
serving as a State agency, may limit
WIC participation to United States
citizens, nationals, and qualified aliens
as these terms are defined in the Immigration and Nationality Laws (8 U.S.C.
1101 et seq.). State agencies that implement this option shall inform FNS of
their intentions and provide copies of
the procedures they will establish regarding the limitation of WIC services
to United States citizens, nationals,
and qualified aliens.
(4) The certification procedure shall
be performed at no cost to the applicant.
(d) Income criteria and income eligibility determinations. The State agency
shall establish, and provide local agencies with, income guidelines, definitions, and procedures to be used in determining an applicant’s income eligibility for the Program.
(1) Income eligibility guidelines. The
State agency may prescribe income
guidelines either equaling the income
guidelines established under section 9
of the National School Lunch Act for
reduced-price school meals or identical
to State or local guidelines for free or
reduced-price health care. However, in
conforming Program income guidelines
to health care guidelines, the State
agency shall not establish Program
guidelines which exceed the guidelines
for reduced-price school meals or are
less than 100 percent of the revised poverty income guidelines issued annually
by the Department of Health and
Human Services. Program applicants
who meet the requirements established
by paragraph (d)(2)(vi)(A) of this section shall not be subject to the income
limits established by State agencies
under this paragraph.
(i) Local agency income eligibility
guidelines. Different guidelines may be
prescribed for different local agencies
within the State provided that the
guidelines are the ones used by the
local agencies for determining eligibility for free or reduced-price health
care.
(ii) Annual adjustments in the income
guidelines. On or before June 1 each
year, FNS will announce adjustments
in the income guidelines for reducedprice meals under section 9 of the National School Lunch Act, based on annual adjustments in the revised poverty income guidelines issued by the
Department of Health and Human
Services.
(iii) Implementation of the income
guidelines. On or before July 1 each
year, each State agency shall announce
and transmit to each local agency the
State agency’s family size income
guidelines, unless changes in the poverty income guidelines issued by the
Department of Health and Human
Services do not necessitate changes in
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Food and Nutrition Service, USDA
§ 246.7
the State or local agency’s income
guidelines. The State agency may implement revised guidelines concurrently with the implementation of income guidelines under the Medicaid
program established under Title XIX of
the Social Security Act (42 U.S.C. 1396
of et seq.). The State agency shall ensure that conforming adjustments are
made, if necessary, in local agency income guidelines. The local agency shall
implement (revised) guidelines not
later than July 1 of each year for which
such guidelines are issued by the State.
(2) Income eligibility determinations.
The State agency shall ensure that
local
agencies
determine
income
through the use of a clear and simple
application form provided or approved
by the State agency.
(i) Timeframes for determining income.
In determining the income eligibility
of an applicant, the State agency may
instruct local agencies to consider the
income of the family during the past 12
months and the family’s current rate
of income to determine which indicator
more accurately reflects the family’s
status. However, persons from families
with adult members who are unemployed shall be eligible based on income during the period of unemployment if the loss of income causes the
current rate of income to be less than
the State or local agency’s income
guidelines for Program eligibility.
(ii) Definition of ‘‘Income’’. If the
State agency uses the National School
Lunch reduced-priced meal income
guidelines, as specified in paragraph
(d)(1) of this section, it shall use the
following definition of income: Income
for the purposes of this part means
gross cash income before deductions for
income taxes, employees’ social security taxes, insurance premiums, bonds,
etc. Income includes the following—
(A) Monetary compensation for services, including wages, salary, commissions, or fees;
(B) Net income from farm and nonfarm self-employment;
(C) Social Security benefits;
(D) Dividends or interest on savings
or bonds, income from estates or
trusts, or net rental income;
(E) Public assistance or welfare payments;
(F) Unemployment compensation;
(G) Government civilian employee or
military retirement or pensions or veterans’ payments;
(H) Private pensions or annuities;
(I) Alimony or child support payments;
(J) Regular contributions from persons not living in the household;
(K) Net royalties; and
(L) Other cash income. Other cash income includes, but is not limited to,
cash amounts received or withdrawn
from any source including savings, investments, trust accounts and other resources which are readily available to
the family.
(iii) Use of a State or local health care
definition of ‘‘Income’’. If the State
agency uses State or local free or reduced-price health care income guidelines, it will ensure that the definitions
of income (see paragraph (d)(2)(ii) of
this section), family (see § 246.2) and allowable exclusions from income (see
paragraph (d)(2)(iv) of this section) are
used uniformly to determine an applicant’s income eligibility. This ensures
that households with a gross income in
excess of 185 percent of the Federal income guidelines (see paragraph (d)(1) of
this section) are not eligible for Program benefits. The exception to this requirement is persons who are also income eligible under other programs
(see paragraph (d)(2)(vi) of this section).
(iv) Income exclusions. (A) In determining income eligibility, the State
agency may exclude from consideration as income any:
(1) Basic allowance for housing received by military services personnel
residing off military installations or in
privatized housing, whether on- or offbase; and
(2) Cost-of-living allowance provided
under 37 U.S.C. 405, to a member of a
uniformed service who is on duty outside the contiguous states of the
United States.
(B) The value of inkind housing and
other inkind benefits, shall be excluded
from consideration as income in determining an applicant’s eligibility for
the program.
(C) Loans, not including amounts to
which the applicant has constant or
unlimited access.
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§ 246.7
7 CFR Ch. II (1–1–18 Edition)
(D) Payments or benefits provided
under certain Federal programs or acts
are excluded from consideration as income by legislative prohibition. The
payments or benefits which must be excluded from consideration as income
include, but are not limited to:
(1) Reimbursements from the Uniform Relocation Assistance and Real
Property Acquisition Policies Act of
1970 (Pub. L. 91–646, sec. 216, 42 U.S.C.
4636);
(2) Any payment to volunteers under
Title I (VISTA and others) and Title II
(RSVP, foster grandparents, and others) of the Domestic Volunteer Service
Act of 1973 (Pub. L. 93–113, sec. 404(g), 42
U.S.C. 5044(g)) to the extent excluded
by that Act;
(3) Payment to volunteers under section 8(b)(1)(B) of the Small Business
Act (SCORE and ACE) (Pub. L. 95–510,
sec. 101, 15 U.S.C. 637(b)(1)(D));
(4) Income derived from certain submarginal land of the United States
which is held in trust for certain Indian tribes (Pub. L. 94–114, sec. 6, 25
U.S.C. 459e);
(5) Payments received under the Job
Training Partnership Act (Pub. L. 97–
300, sec. 142(b), 29 U.S.C. 1552(b));
(6) Income derived from the disposition of funds to the Grand River Band
of Ottawa Indians (Pub. L. 94–540, sec.
6);
(7) Payments received under the
Alaska Native Claims Settlement Act
(Pub. L. 100–241, sec. 15, 43 U.S.C. sec.
1626(c));
(8) The value of assistance to children or their families under the National School Lunch Act, as amended
(Pub. L. 94–105, sec. 9(d), 42 U.S.C. sec.
1760(e)), the Child Nutrition Act of 1966
(Pub. L. 89–642, sec. 11(b), 42 U.S.C. sec.
1780(b)), and the Food and Nutrition
Act of 2008 (Pub. L. 95–113, sec. 1301, 7
U.S.C. sec. 2017(b));
(9) Payments by the Indian Claims
Commission to the Confederated Tribes
and Bands of the Yakima Indian Nation or the Apache Tribe of the Mescalero Reservation (Pub. L. 95–433, sec. 2,
25 U.S.C. 609c–1);
(10) Payments to the Passamaquoddy
Tribe and the Penobscot Nation or any
of their members received pursuant to
the Maine Indian Claims Settlement
Act of 1980 (Pub. L. 96–420, sec. 6, 9(c),
25 U.S.C. 1725(i), 1728(c));
(11) Payments under the Low-income
Home Energy Assistance Act, as
amended (Pub. L. 99–125, sec. 504(c), 42
U.S.C. sec. 8624(f));
(12) Student financial assistance received from any program funded in
whole or part under Title IV of the
Higher Education Act of 1965, including
the Pell Grant, Supplemental Educational Opportunity Grant, State Student Incentive Grants, National Direct
Student Loan, PLUS, College Work
Study, and Byrd Honor Scholarship
programs, which is used for costs described in section 472 (1) and (2) of that
Act (Pub. L. 99–498, section 479B, 20
U.S.C. 1087uu). The specified costs set
forth in section 472 (1) and (2) of the
Higher Education Act are tuition and
fees normally assessed a student carrying the same academic workload as
determined by the institution, and including the costs for rental or purchase
of any equipment, materials, or supplies required of all students in the
same course of study; and an allowance
for books, supplies, transportation, and
miscellaneous personal expenses for a
student attending the institution on at
least a half-time basis, as determined
by the institution. The specified costs
set forth in section 472 (1) and (2) of the
Act are those costs which are related
to the costs of attendance at the educational institution and do not include
room and board and dependent care expenses;
(13) Payments under the Disaster Relief Act of 1974, as amended by the Disaster Relief and Emergency Assistance
Amendments of 1989 (Pub. L. 100–707,
sec. 105(i), 42 U.S.C. sec. 5155(d));
(14) Effective July 1, 1991, payments
received under the Carl D. Perkins Vocational Education Act, as amended by
the Carl D. Perkins Vocational and Applied
Technology
Education
Act
Amendments of 1990 (Pub. L. 101–392,
sec. 501, 20 U.S.C. sec. 2466d);
(15) Payments pursuant to the Agent
Orange Compensation Exclusion Act
(Pub. L. 101–201, sec. 1);
(16) Payments received for Wartime
Relocation of Civilians under the Civil
Liberties Act of 1988 (Pub. L. 100–383,
sec. 105(f)(2), 50 App. U.S.C. sec. 1989b–
4(f)(2));
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Food and Nutrition Service, USDA
§ 246.7
(17) Value of any child care payments
made under section 402(g)(1)(E) of the
Social Security Act, as amended by the
Family Support Act (Pub. L. 100–485,
sec. 301, 42 U.S.C. sec. 602 (g)(1)(E));
(18) Value of any ‘‘at-risk’’ block
grant child care payments made under
section 5081 of Pub. L. 101–508, which
amended section 402(i) of the Social Security Act;
(19) Value of any child care provided
or paid for under the Child Care and
Development Block Grant Act, as
amended (Pub. L. 102–586, Sec. 8(b)), 42
U.S.C. 9858q);
(20) Mandatory salary reduction
amount for military service personnel
which is used to fund the Veteran’s
Educational Assistance Act of 1984 (GI
Bill), as amended (Pub. L. 99–576, sec.
303(a)(1), 38 U.S.C. sec. 1411 (b));
(21) Payments received under the Old
Age Assistance Claims Settlement Act,
except for per capita shares in excess of
$2,000 (Pub. L. 98–500, sec. 8, 25 U.S.C.
sec. 2307);
(22) Payments received under the
Cranston-Gonzales National Affordable
Housing Act, unless the income of the
family equals or exceeds 80 percent of
the median income of the area (Pub. L.
101–625, sec. 522(i)(4), 42 U.S.C. sec. 1437f
nt);
(23) Payments received under the
Housing and Community Development
Act of 1987, unless the income of the
family increases at any time to not
less than 50 percent of the median income of the area (Pub. L. 100–242, sec.
126(c)(5)(A), 25 U.S.C. sec. 2307);
(24) Payments received under the Sac
and Fox Indian claims agreement (Pub.
L. 94–189, sec. 6);
(25) Payments received under the
Judgment Award Authorization Act, as
amended (Pub. L. 97–458, sec. 4, 25
U.S.C. sec. 1407 and Pub. L. 98–64, sec.
2(b), 25 U.S.C. sec. 117b(b));
(26) Payments for the relocation assistance of members of Navajo and
Hopi Tribes (Pub. L. 93–531, sec. 22, 22
U.S.C. sec. 640d-21);
(27) Payments to the Turtle Mountain Band of Chippewas, Arizona (Pub.
L. 97–403, sec. 9);
(28) Payments to the Blackfeet,
Grosventre, and Assiniboine tribes
(Montana) and the Papago (Arizona)
(Pub. L. 97–408, sec. 8(d));
(29) Payments to the Assiniboine
Tribe of the Fort Belknap Indian community and the Assiniboine Tribe of
the Fort Peck Indian Reservation
(Montana) (Pub. L. 98–124, sec. 5);
(30) Payments to the Red Lake Band
of Chippewas (Pub. L. 98–123, sec. 3);
(31) Payments received under the
Saginaw Chippewa Indian Tribe of
Michigan Distribution of Judgment
Funds Act (Pub. L. 99–346, sec. 6(b)(2));
(32) Payments to the Chippewas of
Mississippi (Pub. L. 99–377, sec. 4(b));
(33) Payments received by members
of the Armed Forces and their families
under the Family Supplemental Subsistence Allowance from the Department of Defense (Pub. L. 109–163, sec.
608); and
(34) Payments received by property
owners under the National Flood Insurance Program (Pub. L. 109–64).
(35) Combat pay received by the
household member under Chapter 5 of
Title 37 or as otherwise designated by
the Secretary.
(v) Are applicants required to document
income eligibility? (A) Adjuctively/automatically income eligible applicants. The
State or local agency must require applicants determined to be adjunctively
or automatically income eligible to
document their eligibility for the program that makes them income eligible
as set forth in paragraph (d)(2)(vi) of
this section.
(B) Other applicants. The State or
local agency must require all other applicants to provide documentation of
family income at certification.
(C) Exceptions. The income documentation requirement does not apply
to an individual for whom the necessary documentation is not available
or an individual such as a homeless
woman or child for whom the agency
determines the income documentation
requirement would present an unreasonable barrier to participation. Examples of individuals for whom the necessary documentation is not available
include those with no income or no
proof of income (such as an applicant
or applicant’s parent who is a migrant
farmworker or other individual who
works for cash). These are the only exceptions that may be used. When using
these exceptions, the State or local
agency must require the applicant to
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§ 246.7
7 CFR Ch. II (1–1–18 Edition)
sign a statement specifying why he/she
cannot provide documentation of income. Such a statement is not required
when there is no income.
(D) Verification. The State or local
agency may require verification of information it determines necessary to
confirm income eligibility for Program
benefits.
(vi) Adjunct or automatic income eligibility. (A) The State agency shall accept as income-eligible for the Program any applicant who documents
that he/she is:
(1) Certified as fully eligible to receive SNAP benefits under the Food
and Nutrition Act of 2008, or certified
as fully eligible, or presumptively eligible pending completion of the eligibility determination process, to receive
Temporary Assistance for Needy Families (TANF) under Part A of Title IV of
the Social Security Act or Medical Assistance (i.e., Medicaid) under Title
XIX of the Social Security Act; or
(2) A member of a family that is certified eligible to receive assistance
under TANF, or a member of a family
in which a pregnant woman or an infant is certified eligible to receive assistance under Medicaid.
(B) The State agency may accept, as
evidence of income within Program
guidelines, documentation of the applicant’s participation in State-administered programs not specified in this
paragraph that routinely require documentation of income, provided that
those programs have income eligibility
guidelines at or below the State agency’s Program income guidelines.
(C) Persons who are adjunctively income eligible, as set forth in paragraphs (d)(2)(vi)(A) of this section,
shall not be subject to the income limits established under paragraph (d)(1)
of this section.
(vii) Income eligibility of pregnant
women. A pregnant woman who is ineligible for participation in the program
because she does not meet income
guidelines shall be considered to have
satisfied the income guidelines if the
guidelines would be met by increasing
the number of individuals in her family
by the number of embryos or fetuses in
utero. The same increased family size
may also be used for any of the pregnant woman’s categorically eligible
family members. The State agency
shall allow applicants to waive this increase in family size.
(viii) Income eligibility of Indian applicants. If an Indian State agency (or a
non-Indian State agency which acts on
behalf of a local agency operated by an
Indian organization or the Indian
Health Service) submits census data or
other reliable documentation demonstrating to FNS that the majority of
the Indian households in a local agency’s service area have incomes at or
below the State agency’s income eligibility guidelines, FNS may authorize
the State agency to approve the use of
an income certification system under
which the local Indian agency shall inform each Indian applicant household
of the maximum family income allowed for that applicant’s family size.
The local agency shall ensure that the
applicant, or the applicant’s parent or
caretaker, signs a statement that the
applicant’s family income does not exceed the maximum. The local agency
may verify the income eligibility of
any Indian applicant.
(ix) Are instream migrant farmworkers
and their family members required to document
income
eligibility?
Certain
instream migrant farmworkers and
their family members with expired
Verification of Certification cards shall
be declared to satisfy the State agency’s income standard and income documentation requirements. Such cases
include when income of that instream
migrant farmworker is determined at
least once every 12 months. Such families shall satisfy the income criteria in
any State for any subsequent certification while the migrant is instream
during the 12-month period following
the determination. The determination
can occur either in the migrant’s home
base area before the migrant has entered the stream for a particular agricultural season, or in an instream area
during the agricultural season.
(e) Nutritional risk. To be certified as
eligible for the Program, applicants
who meet the Program’s eligibility
standards specified in paragraph (c) of
this section must be determined to be
at nutritional risk. A competent professional authority on the staff of the
local agency shall determine if a person is at nutritional risk through a
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Food and Nutrition Service, USDA
§ 246.7
medical and/or nutritional assessment.
This determination may be based on
referral data submitted by a competent
professional authority not on the staff
of the local agency. Nutritional risk
data shall be documented in the participant’s file and shall be used to assess an applicant’s nutritional status
and risk; tailor the food package to address nutritional needs; design appropriate nutrition education, including
breastfeeding promotion and support;
and make referrals to health and social
services for follow-up, as necessary and
appropriate.
Except as stated in paragraph
(e)(1)(v) of this section, at least one determination of nutritional risk must be
documented at the time of certification in order for an income eligible
applicant to receive WIC benefits.
(1) Determination of nutritional risk. (i)
Required nutritional risk data. (A) At a
minimum, height or length and weight
measurements shall be performed and/
or documented in the applicant’s file at
the time of certification. In addition, a
hematological test for anemia such as
a hemoglobin, hematocrit, or free
erythrocyte protoporphyrin test shall
be performed and/or documented at
certification for applicants with no
other nutritional risk factor present.
For applicants with a qualifying nutritional risk factor present at certification, such test shall be performed
and/or documented within 90 days of
the date of certification. However, for
breastfeeding women 6–12 months
postpartum, such hematological tests
are not required if a test was performed
after the termination of their pregnancy. In addition, such hematological
tests are not required, but are permitted, for infants under nine months
of age. All infants nine months of age
and older (who have not already had a
hematological test performed or obtained, between the ages of six and
nine
months),
shall
have
a
hematological test performed between
nine and twelve months of age or obtained from referral sources. This
hematological test does not have to
occur within 90 days of the date of certification. Only one test is required for
children between 12 and 24 months of
age, and this test should be done 6
months after the infant test, if pos-
sible. At the State or local agency’s
discretion, the hematological test is
not required for children ages two and
older who were determined to be within
the normal range at their last certification. However, the hematological
test shall be performed on such children at least once every 12 months.
Hematological test data submitted by
a competent professional authority not
on the staff of the local agency may be
used to establish nutritional risk. However, such referral hematological data
must:
(1) Be reflective of a woman applicant’s category, meaning the test must
have been taken for pregnant women
during pregnancy and for postpartum
or breastfeeding women following termination of pregnancy;
(2) Conform to the anemia screening
schedule for infants and children as
outlined in paragraph (e)(1)(ii)(B) of
this section; and
(3) Conform to recordkeeping requirements as outlined in paragraph (i)(4) of
this section.
(B) Height or length and weight
measurements and, with the exceptions
specified in paragraph (e)(1)(v) of this
section, hematological tests, shall be
obtained for all participants, including
those who are determined at nutritional risk based solely on the established nutritional risk status of another person, as provided in paragraphs
(e)(1)(iv) and (e)(1)(v) of this section.
(ii) Timing of nutritional risk data. (A)
Weight and height or length. Weight and
height or length shall be measured not
more than 60 days prior to certification
for program participation.
(B) Hematological test for anemia. (1)
For
pregnant,
breastfeeding,
and
postpartum women, and child applicants, the hematological test for anemia shall be performed or obtained
from referral sources at the time of
certification or within 90 days of the
date
of
certification.
The
hematological test for anemia may be
deferred for up to 90 days from the time
of certification for applicants who have
at least one qualifying nutritional risk
factor present at the time of certification. If no qualifying risk factor is
identified, a hematological test for
anemia must be performed or obtained
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§ 246.7
7 CFR Ch. II (1–1–18 Edition)
from referral sources (with the exception of presumptively eligible pregnant
women).
(2) Infants nine months of age and
older (who have not already had a
hematological test performed, between
six and nine months of age, by a competent professional authority or obtained from referral sources), shall between nine and twelve months of age
have a hematological test performed or
obtained from referral sources. Such a
test may be performed more than 90
days after the date of certification.
(3)
For
pregnant
women,
the
hematological test for anemia shall be
performed during their pregnancy. For
persons certified as postpartum or
breastfeeding
women,
the
hematological test for anemia shall be
performed after the termination of
their pregnancy. For breastfeeding
women
who
are
6–12
months
postpartum, no additional blood test is
necessary if a test was performed after
the termination of their pregnancy.
The participant or parent/guardian
shall be informed of the test results
when there is a finding of anemia, and
notations reflecting the outcome of the
tests shall be made in the participant’s
file. Nutrition education, food package
tailoring, and referral services shall be
provided to the participant or parent/
guardian, as necessary and appropriate.
(iii)
Breastfeeding
dyads.
A
breastfeeding woman may be determined to be a nutritional risk if her
breastfed infant has been determined
to be a nutritional risk. A breastfed infant can be certified based on the
mother’s medical and/or nutritional assessment. A breastfeeding mother and
her infant shall be placed in the highest priority level for which either is
qualified.
(iv) Infants born to WIC mothers or
women who were eligible to participate in
WIC. An infant under six months of age
may be determined to be at nutritional
risk if the infant’s mother was a Program participant during pregnancy or
of medical records document that the
woman was at nutritional risk during
pregnancy because of detrimental or
abnormal nutritional conditions detectable by biochemical or anthropometric measurements or other docu-
mented nutritionally related medical
conditions.
(v) Presumptive eligibility for pregnant
women. A pregnant woman who meets
the income eligibility standards may
be considered presumptively eligible to
participate in the program, and may be
certified immediately without an evaluation of nutritional risk for a period
up to 60 days. A nutritional risk evaluation of such woman shall be completed not later than 60 days after the
woman is certified for participation. A
hematological test for anemia is not
required to be performed within the 60day period, but rather within 90 days,
unless the nutritional risk evaluation
performed does not identify a qualifying risk factor. If no qualifying risk
factor is identified, a hematological
test for anemia must be performed or
obtained from referral sources before
the 60-day period elapses. Under the
subsequent determination process, if
the woman does not meet any qualifying nutritional risk criteria, including anemia criteria, the woman shall
be determined ineligible and may not
participate in the program for the reference pregnancy after the date of the
determination. Said applicant may
subsequently reapply for program benefits and if found to be both income eligible and at qualifying nutritional risk
may participate in the program. Persons found ineligible to participate in
the program under this paragraph shall
be advised in writing of the ineligibility, of the reasons for the ineligibility, and of the right to a fair hearing. The reasons for the ineligibility
shall be properly documented and shall
be retained on file at the local agency.
In addition, if the nutritional risk evaluation is not completed within the 60day timeframe, the woman shall be determined ineligible.
(vi) Regression. A WIC participant
who is reapplying for WIC benefits may
be considered to be at nutritional risk
in the next certification period if the
competent professional authority determines that the applicant’s nutritional status may regress to the nutritional risk condition(s) certified for in
the previous certification period without supplemental foods and/or WIC nutrition services, and if the nutritional
risk condition(s) certified for in the
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Food and Nutrition Service, USDA
§ 246.7
previous certification period is/are appropriate to the category of the participant in the subsequent certification
based on regression. However, such applicants shall not be considered at nutritional risk based on the possibility
of regression for consecutive certification periods. Applicants who are certified based on the possibility of regression should be placed either in the
same priority for which they were certified in the previous certification period; a priority level lower than the
priority level assigned in the previous
certification period, consistent with
§ 246.7(e)(4); or in Priority VII, if the
State agency is using that priority
level.
(2) Nutritional risk criteria. The following are examples of nutritional risk
conditions which may be used as a
basis for certification. These examples
include—
(i) Detrimental or abnormal nutritional conditions detectable by biochemical or anthropometric measurements, such as anemia, underweight,
overweight, abnormal patterns of
weight gain in a pregnant woman, low
birth weight in an infant, or stunting
in an infant or child;
(ii) Other documented nutritionally
related medical conditions, such as
clinical signs of nutritional deficiencies, metabolic disorders, pre-eclampsia in pregnant women, failure to
thrive in an infant, chronic infections
in any person, alcohol or drug abuse or
mental retardation in women, lead poisoning, history of high risk pregnancies or factors associated with high
risk pregnancies (such as smoking;
conception
before
16
months
postpartum; history of low birth
weight, premature births, or neonatal
loss; adolescent pregnancy; or current
multiple
pregnancy)
in
pregnant
women, or congenital malformations in
infants or children, or infants born of
women with alcohol or drug abuse histories or mental retardation.
(iii) Dietary deficiencies that impair
or endanger health, such as inadequate
dietary patterns assessed by a 24-hour
dietary recall, dietary history, or food
frequency checklist; and
(iv) Conditions that predispose persons to inadequate nutritional patterns
or nutritionally related medical condi-
tions, such as homelessness or migrancy.
(3) Nutritional risk priorities. In determining nutritional risk, the State
agency shall develop and include in its
State Plan, specific risk conditions by
priority level with indices for identifying these conditions. The criteria
shall be used statewide and in accordance with the priority system as set
forth in paragraph (e)(4) of this section.
(4) Nutritional risk priority system. The
competent professional authority shall
fill vacancies which occur after a local
agency has reached its maximum participation level by applying the following participant priority system to
persons on the local agency’s waiting
list. Priorities I through VI shall be
utilized in all States. The State agency
may, at its discretion, expand the priority system to include Priority VII.
The State agency may set income or
other sub-priority levels within any of
these seven priority levels. The State
agency may expand Priority III, IV, or
V to include high-risk postpartum
women. The State agency may place
pregnant or breastfeeding women and
infants who are at nutritional risk
solely because of homelessness or migrancy in Priority IV; children who are
at nutritional risk solely because of
homelessness or migrancy in Priority
V; and postpartum women who are at
nutritional risk solely because of
homelessness or migrancy in Priority
VI, OR, the State agency may place
pregnant, breastfeeding or postpartum
women, infants, and children who are
at nutritional risk solely because of
homelessness or migrancy in Priority
VII.
(i) Priority I. Pregnant women,
breastfeeding women and infants at nutritional risk as demonstrated by
hematological
or
anthropometric
measurements, or other documented
nutritionally related medical conditions which demonstrate the need for
supplemental foods.
(ii) Priority II. Except those infants
who qualify for Priority I, infant up to
six months of age of Program participants who participated during pregnancy, and infants up to six months of
age born of women who were not Program participants during pregnancy
but whose medical records document
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§ 246.7
7 CFR Ch. II (1–1–18 Edition)
that they were at nutritional risk during pregnancy due to nutritional conditions detectable by biochemical or anthropometric measurements or other
documented nutritionally related medical conditions which demonstrated the
person’s need for supplemental foods.
(iii) Priority III. Children at nutritional
risk
as
demonstrated
by
hematological
or
anthropometric
measurements or other documented
medical conditions which demonstrate
the child’s need for supplemental foods.
(iv) Priority IV. Pregnant women,
breastfeeding women, and infants at
nutritional risk because of an inadequate dietary pattern.
(v) Priority V. Children at nutritional
risk because of an inadequate dietary
pattern.
(vi) Priority VI. Postpartum women at
nutritional risk.
(vii) Priority VII. Individuals certified
for WIC solely due to homelessness or
migrancy and, at State agency option,
in accordance with the provisions of
paragraph (e)(1)(vi) of this section, previously certified participants who
might regress in nutritional status
without continued provision of supplemental foods.
(f) Processing standards. The local
agencies shall process applicants within the following timeframes:
(1) Waiting lists. When the local agency is serving its maximum caseload,
the local agency shall maintain a waiting list of individuals who visit the
local agency to express interest in receiving Program benefits and who are
likely to be served. However, in no case
shall an applicant who requests placement on the waiting list be denied inclusion. State agencies may establish a
policy which permits or requires local
agencies to accept telephone requests
for placement on the waiting list. The
waiting list shall include the person’s
name, address or phone number, status
(e.g., pregnant, breastfeeding, age of
applicant), and the date he or she was
placed on the waiting list. Individuals
shall be notified of their placement on
a waiting list within 20 days after they
visit the local agency during clinic office hours to request Program benefits.
For those State agencies establishing
procedures to accept telephone requests for placement on a waiting list,
individuals shall be notified of their
placement on a waiting list within 20
days after contacting the local agency
by phone. The competent professional
authority shall apply the participant
priority system as specified in paragraph (e)(4) of this section to the waiting list to ensure that the highest priority persons become Program participants first when caseload slots become
available.
(2) Timeframes for processing applicants. (i) When the local agency is not
serving its maximum caseload, the
local agency shall accept applications,
make eligibility determinations, notify
the applicants of the decisions made
and, if the applicants are to be enrolled, issue food, cash-value vouchers
or food instruments. All of these actions shall be accomplished within the
timeframes set forth below.
(ii) The processing timeframes shall
begin when the individual visits the
local agency during clinic office hours
to make an oral or written request for
Program benefits. To ensure that accurate records are kept of the date of
such requests, the local agency shall,
at the time of each request, record the
applicant’s name, address and the date.
The remainder of the information necessary to determine eligibility shall be
obtained by the time of certification.
Medical data taken prior to certification may be used as provided in paragraph (g)(4) of this section.
(iii) The local agency shall act on applications within the following timeframes:
(A) Special nutritional risk applicants shall be notified of their eligibility or ineligibility within 10 days of
the date of the first request for Program benefits; except that State agencies may provide an extension of the
notification period to a maximum of 15
days for those local agencies which
make written request, including a justification of the need for an extension.
The State agency shall establish criteria for identifying categories of persons at special nutritional risk who require expedited services. At a minimum, however, these categories shall
include pregnant women eligible as
Priority I participants, and migrant
farmworkers and their family members
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Food and Nutrition Service, USDA
§ 246.7
who soon plan to leave the jurisdiction
of the local agency.
(B) All other applicants shall be notified of their eligibility or ineligibility
within 20 days of the date of the first
request for Program benefits.
(iv) Each local agency using a retail
purchase system shall issue a food instrument(s) and if applicable cashvalue voucher(s) to the participant at
the same time as notification of certification. Such food instrument(s) and
cash-value vouchers shall provide benefits for the current month or the remaining portion thereof and shall be
redeemable immediately upon receipt
by the participant. Local agencies may
A/an:
Will be certified:
(i) Pregnant woman ....................................
For the duration of her pregnancy, and up to the last day of the month in which the
infant becomes six weeks old or the pregnancy ends (for example, if the infant is
born June 4, six weeks after birth would be July 16, and certification would end
July 31).
Up to the last day of the sixth month after the baby is born or the pregnancy ends
(postpartum).
Approximately every six months. The State agency may permit its local agencies to
certify a breastfeeding woman up to the last day of the month in which her infant
turns 1 year old, or until the woman ceases breastfeeding, whichever occurs first.
Approximately every six months. The State agency may permit its local agencies to
certify an infant under six months of age up to the last day of the month in which
the infant turns 1 year old, provided the quality and accessibility of health care
services are not diminished.
Approximately every six months ending with the last day of the month in which a
child reaches his/her fifth birthday. The State agency may permit its local agencies to certify a child for a period of up to one year, provided the local agency
ensures that the child receives the required health and nutrition assessments, as
set forth in § 246.11(e)(3).
(ii) Postpartum woman ...............................
(iii) Breastfeeding woman ...........................
(iv) Infant .....................................................
(v) Child ......................................................
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mail the initial food instrument(s) and
if applicable cash-value vouchers with
the notification of certification to
those participants who meet the criteria for the receipt of food instruments through the mail, as provided in
§ 246.12(r)(4).
(v) Each local agency with a direct
distribution or home delivery system
shall issue the supplemental foods to
the participant within 10 days of
issuing the notification of certification.
(g) Certification periods. (1) Program
benefits will be based upon certifications established in accordance with
the following timeframes:
(2) The State agency may authorize
local agencies under its jurisdiction to
establish shorter certification periods
than outlined in paragraph (g)(1) of
this section on a case-by-case basis. If
the State agency exercises this option,
it shall issue guidance for use by local
agencies in establishing the shorter periods.
(3) In cases where there is difficulty
in appointment scheduling for persons
referenced in paragraphs (g)(1) (iii), (iv)
and (v) of this section, the certification
period may be shortened or extended
by a period not to exceed 30 days.
(h) Mandatory and optional mid-certification actions. Mid-certification actions
are either mandatory or optional as
follows:
(1) Mandatory reassessment of income
eligibility mid-certification. (i) The local
agency must reassess a participant’s
income eligibility during the current
certification period if the local agency
receives information indicating that
the participant’s household income has
changed. However, such assessments
are not required in cases where sufficient time does not exist to effect the
change. Sufficient time means 90 days
or less before the expiration of the certification period.
(ii) Mandatory disqualification mid-certification for income ineligibility. The
local agency must disqualify a participant and any other household members
currently receiving WIC benefits who
are determined ineligible based on the
mid-certification income reassessment.
However, adjunctively-eligible WIC
participants (as defined in paragraphs
(d)(2)(vi)(A) or (d)(2)(vi)(B) of this section) may not be disqualified from the
WIC Program solely because they, or
certain family members, no longer participate in one of the other specified
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§ 246.7
7 CFR Ch. II (1–1–18 Edition)
programs. The State agency will ensure that such participants and other
household members currently receiving
WIC benefits are disqualified during a
certification period only after their income eligibility has been reassessed
based on the income screening procedures used for applicants who are not
adjunctively eligible.
(2) Mandatory sanctions or other actions for participant violations. The local
agency must impose disqualifications,
or take other actions in accordance
with the procedures set forth in
§ 246.12(u), in response to participant
violations including, but not limited
to, the violations listed in the definition of Participant violation in § 246.2.
(3) Optional mid-certification actions. A
participant may be disqualified during
a certification period for the following
reasons:
(i) A State agency may allow local
agencies to disqualify a participant for
failure to obtain food instruments,
cash-value vouchers or supplemental
foods for several consecutive months.
As specified by the State agency, proof
of such failure includes failure to pick
up supplemental foods, cash-value
vouchers or food instruments, nonreceipt of food instruments or cashvalue vouchers (when mailed instruments or vouchers are returned), or
failure to have an electronic benefit
transfer card revalidated for purchase
of supplemental foods; or
(ii) If a State agency experiences
funding shortages, it may be necessary
to discontinue Program benefits to
some certified participants. The State
agency must explore alternatives (such
as elimination of new certifications)
before taking such action. In discontinuing benefits, the State agency
will affect the least possible number of
participants and those whose nutritional and health status would be least
impaired by the action. When a State
agency elects to discontinue benefits
due to insufficient funds, it will not enroll new participants during that period. The State may discontinue benefits by:
(A) Disqualifying a group of participants; and/or,
(B) Withholding benefits from a
group with the expectation of pro-
viding benefits again when funds are
available.
(i) Certification forms. All certification data for each person certified
shall be recorded on a form (or forms)
which are provided by the State agency. The information on the forms shall
include—
(1) Name and address;
(2) Date of initial visit to apply for
participation;
(3) An indication of whether the applicant was physically present at certification and, if not, the reason why
an exception was granted or a copy of
the document(s) in the file which explains the reason for the exception;
(4) A description of the document(s)
used to determine residency and identity or a copy of the document(s) used
or the applicant’s written statement
when no documentation exists;
(5) Information regarding income eligibility for the Program as specified in
paragraph (d) of this section as follows:
(i) A description of the document(s)
used to determine income eligibility or
a copy of the document(s) in the file;
(ii) An indication that no documentation is available and the reason(s) why
or a copy of the applicant’s written
statement
explaining
such
circumstances; or
(iii) An indication that the applicant
has no income.
(6) The date of certification and the
date nutritional risk data were taken if
different from the date of certification;
(7) Height or length, weight, and
hematological test results;
(8) The specific nutritional risk conditions which established eligibility for
the supplemental foods. Documentation should include health history
when appropriate to the nutritional
risk condition, with the applicant’s or
applicant’s parent’s or caretaker’s consent;
(9) The signature and title of the
competent professional authority making the nutritional risk determination,
and, if different, the signature and title
of the administrative person responsible for determining income eligibility
under the Program; and
(10) A statement of the rights and obligations under the Program. The
statement must contain a signature
space, and must be read by or to the
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Food and Nutrition Service, USDA
§ 246.7
applicant, parent, or caretaker. It must
contain the following language or alternate language as approved by FNS
(see § 246.4(a)(11)(i)), and be signed by
the applicant, parent, or caretaker
after the statement is read:
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I have been advised of my rights and obligations under the Program. I certify that the
information I have provided for my eligibility determination is correct, to the best of
my knowledge. This certification form is
being submitted in connection with the receipt of Federal assistance. Program officials
may verify information on this form. I understand that intentionally making a false
or misleading statement or intentionally
misrepresenting, concealing, or withholding
facts may result in paying the State agency,
in cash, the value of the food benefits improperly issued to me and may subject me to
civil or criminal prosecution under State
and Federal law.
(11) If the State agency exercises the
authority to use and disclose confidential applicant and participant information for non-WIC purposes pursuant to
§ 246.26(d)(2), a statement that:
(i) Notifies applicants that the chief
State health officer (or the governing
authority, in the case of an Indian
State agency) may authorize the use
and disclosure of information about
their participation in the WIC Program
for non-WIC purposes;
(ii) Must indicate that such information will be used by State and local
WIC agencies and public organizations
only in the administration of their programs that serve persons eligible for
the WIC Program; and,
(iii) Will be added to the statement
required under paragraph (i)(10) of this
section. This statement must also indicate that such information can be used
by the recipient organizations only for
the following:
(A) To determine the eligibility of
WIC applicants and participants for
programs administered by such organizations;
(B) To conduct outreach for such programs;
(C) To enhance the health, education,
or well-being of WIC applicants and
participants currently enrolled in
those programs;
(D) To streamline administrative
procedures in order to minimize burdens on participants and staff; and,
(E) To assess and evaluate a State’s
health system in terms of responsiveness to participants’ health care needs
and health care outcomes.
(j) Notification of participant rights and
responsibilities. In order to inform applicants and participants or their parents
or caretakers of Program rights and responsibilities, the following information shall be provided. Where a significant number or proportion of the population eligible to be served needs the
information in a language other than
English, reasonable steps shall be
taken to provide the information in appropriate languages to such persons,
considering the scope of the Program
and the size and concentration of such
population.
(1) During the certification procedure, every Program applicant, parent
or caretaker shall be informed of the
illegality of dual participation.
(2) At the time of certification, each
Program participant, parent or caretaker must read, or have read to him
or her, the statement provided in paragraph (i)(10) of this section (or an alternate statement as approved by FNS).
In addition, the following sentences (or
alternate sentences as approved by
FNS) must be read:
(i) ‘‘Standards for eligibility and participation in the WIC Program are the
same for everyone, regardless of race,
color, national origin, age, handicap, or
sex.’’
(ii) ‘‘You may appeal any decision
made by the local agency regarding
your eligibility for the Program.’’
(iii) ‘‘The local agency will make
health services, nutrition education
and breastfeeding support available to
you, and you are encouraged to participate in these services.’’
(3) If the State agency implements
the policy of disqualifying a participant for not picking up supplemental
foods, cash-value vouchers or food instruments in accordance with paragraph (h)(3)(i) of this section, it shall
provide notice of this policy and of the
importance of regularly picking up
cash-value vouchers, food instruments
or supplemental foods to each participant, parent or caretaker at the time
of each certification.
(4) At least during the initial certification visit, each participant, parent
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§ 246.7
7 CFR Ch. II (1–1–18 Edition)
or caretaker shall receive an explanation of how the local food delivery
system operates and shall be advised of
the types of health services available,
where they are located, how they may
be obtained and why they may be useful.
(5) Persons found ineligible for the
Program during a certification visit
shall be advised in writing of the ineligibility, of the reasons for the ineligibility, and of the right to a fair hearing. The reasons for ineligibility shall
be properly documented and shall be
retained on file at the local agency.
(6) A person who is about to be suspended or disqualified from program
participation at any time during the
certification period shall be advised in
writing not less than 15 days before the
suspension or disqualification. Such
notification shall include the reasons
for this action, and the participant’s
right to a fair hearing. Further, such
notification need not be provided to
persons who will be disqualified for not
picking up cash-value vouchers, supplemental foods or food instruments in accordance with paragraph (h)(3)(i) of
this section.
(7) When a State or local agency pursues collection of a claim pursuant to
§ 246.23(c) against an individual who has
been improperly issued benefits, the
person shall be advised in writing of
the reason(s) for the claim, the value of
the improperly issued benefits which
must be repaid, and of the right to a
fair hearing.
(8) Each participant, parent or caretaker shall be notified not less than 15
days before the expiration of each certification period that certification for
the Program is about to expire.
(9) If a State agency must suspend or
terminate benefits to any participant
during the participant’s certification
period due to a shortage of funds for
the Program, it shall issue a notice to
such participant in advance, as stipulated in paragraph (j)(6) of this section.
(10) During the certification procedure, every Program applicant, parent
or caretaker shall be informed that
selling or offering to sell WIC benefits,
including cash value vouchers, food instruments, EBT cards, or supplemental
foods in person, in print, or on-line is a
participant violation.
(k) Transfer of certification. (1) Each
State agency shall ensure issuance of a
Verification of Certification card to
every participant who is a member of a
family in which there is a migrant
farmworker or any other participant
who is likely to be relocating during
the certification period. Certifying
local agencies shall ensure that
Verification of Certification cards are
fully completed.
(2) The State agency shall require the
receiving local agency to accept
Verification of Certification cards from
participants, including participants
who are migrant farmworkers or members of their families, who have been
participating in the Program in another local agency within or outside of
the jurisdiction of the State agency. A
person with a valid Verification of Certification card shall not be denied participation in the receiving State because the person does not meet that
State’s particular eligibility criteria.
(3) The Verification of Certification
card is valid until the certification period expires, and shall be accepted as
proof of eligibility for Program benefits. If the receiving local agency has
waiting lists for participation, the
transferring participant shall be placed
on the list ahead of all waiting applicants.
(4) The Verification of Certification
card shall include the name of the participant, the date the certification was
performed, the date income eligibility
was last determined, the nutritional
risk condition of the participant, the
date the certification period expires,
the signature and printed or typed
name of the certifying local agency official, the name and address of the certifying local agency and an identification number or some other means of
accountability. The Verification of
Certification card shall be uniform
throughout the jurisdiction of the
State agency.
(l) Dual participation. The State agency is responsible for the following:
(1) In conjunction with WIC local
agencies, the prevention and identification of dual participation within each
local agency and between local agencies under the State agency’s jurisdiction, including actions to identify suspected instances of dual participation
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Food and Nutrition Service, USDA
§ 246.7
at least semiannually. The State or
local agency must take follow-up action within 120 days of detecting instances of suspected dual participation;
(2) In areas where a local agency
serves the same population as an Indian State agency or a CSFP agency,
and in areas where geographical or
other factors make it likely that participants travel regularly between contiguous local service areas located
across State agency borders, entering
into an agreement with the other agency for the detection and prevention of
dual participation. The agreement
must be made in writing and included
in the State Plan;
(3) Immediate termination from participation in one of the programs or
clinics for participants found in violation due to dual participation; and
(4) In cases of dual participation resulting from intentional misrepresentation, the collection of improperly
issued benefits in accordance with
§ 246.23(c)(1) and disqualification from
both programs in accordance with
§ 246.12(u)(2).
(m) Certification of persons in homeless
facilities and institutions. (1) Pregnant,
breastfeeding, and postpartum women,
infants or children who meet the requirements of paragraph (c) of this section, and who reside in a homeless facility, shall be considered eligible for
the Program and shall be treated
equally with all other eligible applicants at the local agency where they
apply for WIC benefits, Provided that:
the State or local agency has taken
reasonable steps to:
(i) Establish, to the extent practicable, that the homeless facility
meets the following conditions with respect to resident WIC participants:
(A) The homeless facility does not accrue financial or in-kind benefit from a
person’s participation in the Program,
e.g., by reducing its expenditures for
food service because its residents are
receiving WIC foods;
(B) Foods provided by the WIC Program are not subsumed into a communal food service, but are available
exclusively to the WIC participant for
whom they were issued;
(C) The homeless facility places no
constraints on the ability of the participant to partake of the supplemental
foods,
nutrition
education
and
breastfeeding support available under
the Program;
(ii) Contact the homeless facility periodically to ensure continued compliance with these conditions; and
(iii) Request the homeless facility to
notify the State or local agency if it
ceases to meet any of these conditions.
(2) The State agency may authorize
or require local agencies to make the
Program available to applicants who
meet the requirements of paragraph (c)
of this section, but who reside in institutions which meet the conditions of
paragraphs (n)(1)(i)(A)–(C) of this section with respect to resident WIC participants.
(3) The State or local agency shall attempt to establish to the best of its
ability,whether a homeless facility or
institution complies with the conditions of paragraphs (n)(1)(i) (A)–(C) of
this section with respect to WIC participants. If caseload slots are available, full certification periods shall be
provided to the following:
(i) Participants who are residents of
a homeless facility or institution
which has been found to be in compliance with the conditions of paragraph
(n)(1)(i)(A)–(C) of this section;
(ii) Participants who are residents of
a homeless facility or institution
whose compliance with the conditions
of paragraphs (n)(1)(i)(A)–(C) of this
section has not yet been established;
and
(iii) Participants for whom no other
shelter alternative is available in the
local agency’s service delivery area.
(4) If a homeless facility or institution has been determined to be noncompliant during the course of a participant’s initial certification period,
participants applying for continued
benefits may be certified again, but the
State
agency
shall
discontinue
issuance of WIC foods, except infant
formula, to the participant in such accommodation until the accommodation’s compliance is achieved or alternative shelter arrangements are made.
If certified, such participants shall
continue to be eligible to receive all
other WIC benefits, such as nutrition
education, including breastfeeding promotion and support, and health care
referral services.
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§ 246.7
7 CFR Ch. II (1–1–18 Edition)
(5) The State agency shall continue
to the end of their certification periods
the participation of residents of a
homeless facility or institution which
ceases to comply with the conditions of
paragraphs (n)(1)(i)(A)–(C) of this section.
(6) As soon as the State or local agency determines that a homeless facility/
institution does not meet the conditions of paragraphs (n)(1)(i) (A)–(C) of
this section, it shall refer all participants using such accommodation to
any other accommodations in the area
which meet these conditions.
(n) Drug and other harmful substance
abuse screening. When a State agency
determines that screening is necessary
to fulfill the referral requirements in
this part, the State agency must require screening for the use of drugs and
other harmful substances. When such
screening is required, it shall:
(1) Be limited to the extent the State
agency deems necessary to fulfill the
referral requirement of § 246.4(a)(8) of
this part and the drug and other harmful substance abuse information requirement of § 246.11(a)(3) of this part;
and
(2) Be integrated into certification
process as part of the medical or nutritional assessment.
(o) Are applicants required to be physically present at certification?—(1) In general. The State or local agency must require all applicants to be physically
present at each WIC certification.
(2) Exceptions—(i) Disabilities. The
State or local agency must grant an
exception to applicants who are qualified individuals with disabilities and
are unable to be physically present at
the WIC clinic because of their disabilities or applicants whose parents or
caretakers are individuals with disabilities that meet this standard. Examples of such situations include:
(A) A medical condition that necessitates the use of medical equipment
that is not easily transportable;
(B) A medical condition that requires
confinement to bed rest; and
(C) A serious illness that may be exacerbated by coming in to the WIC
clinic.
(ii) Receiving ongoing health care. The
State agency may exempt from the
physical presence requirement, if being
physically present would pose an unreasonable barrier, an infant or child
who was present at his/her initial WIC
certification and is receiving ongoing
health care.
(iii) Working parents or caretakers. The
State agency may exempt from the
physical presence requirement an infant or child who was present at his/her
initial WIC certification and was
present at a WIC certification or recertification determination within the 1year period ending on the date of the
most recent certification or recertification determination and is under the
care of one or more working parents or
one or more primary working caretakers whose working status presents a
barrier to bringing the infant or child
in to the WIC clinic.
(iv) Infants under 8 weeks of age. The
State agency may exempt from the
physical presence requirement an infant under eight (8) weeks of age who
cannot be present at certification for a
reason determined appropriate by the
local agency, and for whom all necessary certification information is provided.
(p) Certification of qualified aliens. In
those cases where a person sponsors a
qualified alien, (as the term is defined
in the Immigration and Nationality
Laws (8 U.S.C.1101 et seq.)), i.e., signs an
affidavit of support, the sponsor’s income, including the income of the
sponsor’s spouse, shall not be counted
in determining the income eligibility
of the qualified alien except when the
alien is a member of the sponsor’s family or economic unit. Sponsors of qualified aliens are not required to reimburse the State or local agency or the
Federal government for WIC Program
benefits provided to sponsored aliens.
Further, qualified aliens are eligible
for the WIC Program without regard to
the length of time in the qualifying
status.
[50 FR 6121, Feb. 13, 1985]
EDITORIAL NOTE: For FEDERAL REGISTER citations affecting § 246.7, see the List of CFR
Sections Affected, which appears in the
Finding Aids section of the printed volume
and at www.fdsys.gov.
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Food and Nutrition Service, USDA
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§ 246.8
§ 246.9
Nondiscrimination.
(a) Civil rights requirements. The State
agency shall comply with the requirements of title VI of the Civil Rights
Act of 1964, title IX of the Education
Amendments of 1972, section 504 of the
Rehabilitation Act of 1973, the Age Discrimination Act of 1975, Department of
Agriculture
regulations
on
nondiscrimination (7 CFR parts 15, 15a and
15b), and FNS instructions to ensure
that no person shall, on the grounds of
race, color, national origin, age, sex or
handicap, be excluded from participation in, be denied benefits of, or be otherwise subjected to discrimination
under the Program. Compliance with
title VI of the Civil Rights Act of 1964,
title IX of the Education Amendments
of 1972, Section 504 of the Rehabilitation Act of 1973, the Age Discrimination Act of 1975, and regulations and
instructions issued thereunder shall include, but not be limited to:
(1) Notification to the public of the
nondiscrimination policy and complaint rights of participants and potentially eligible persons;
(2) Review and monitoring activity to
ensure Program compliance with the
nondiscrimination laws and regulations;
(3) Collection and reporting of racial
and ethnic participation data as required by title VI of the Civil Rights
Act of 1964, which prohibits discrimination in federally assisted programs on
the basis of race, color, or national origin; and
(4) Establishment of grievance procedures for handling complaints based on
sex and handicap.
(b) Complaints. Persons seeking to file
discrimination complaints should write
to USDA, Director, Office of Adjudication and Compliance, 1400 Independence
Avenue, SW., Washington, DC 20250–
9410, or call (800) 795–3272 (voice) or (202)
720–6382 (TTY). All complaints received
by State or local agencies which allege
discrimination based on race, color, national origin, or age shall be referred to
the Secretary of Agriculture or Director, Office of Equal Opportunity. A
State or local agency may process
complaints which allege discrimination
based on sex or handicap if grievance
procedures are in place.
(c) Non-English materials. Where a significant number or proportion of the
population eligible to be served needs
service or information in a language
other than English in order effectively
to be informed of or to participate in
the Program, the State agency shall
take reasonable steps considering the
size and concentration of such population, to provide information in appropriate languages to such persons. This
requirement applies with regard to required Program information except
certification forms which are used only
by local agency staff. The State agency
shall also ensure that all rights and responsibilities listed on the certification form are read to these applicants in the appropriate language.
[50 FR 6121, Feb. 13, 1985, as amended at 73
FR 11312, Mar. 3, 2008]
§ 246.9 Fair hearing
participants.
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for
(a) Availability of hearings. The State
agency shall provide a hearing procedure through which any individual may
appeal a State or local agency action
which results in a claim against the individual for repayment of the cash
value of improperly issued benefits or
results in the individual’s denial of participation or disqualification from the
Program.
(b) Hearing system. The State agency
shall provide for either a hearing at the
State level or a hearing at the local
level which permits the individual to
appeal a local agency decision to the
State agency. The State agency may
adopt local level hearings in some
areas, such as those with large caseloads, and maintain only State level
hearings in other areas.
(c) Notification of appeal rights. At the
time of a claim against an individual
for improperly issued benefits or at the
time of participation denial or of disqualification from the Program, the
State or local agency shall inform each
individual in writing of the right to a
fair hearing, of the method by which a
hearing may be requested, and that
any positions or arguments on behalf
of the individual may be presented personally or by a representative such as
a relative, friend, legal counsel or
other spokesperson. Such notification
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§ 246.9
7 CFR Ch. II (1–1–18 Edition)
is not required at the expiration of a
certification period.
(d) Request for hearing. A request for
a hearing is defined as any clear expression by the individual, the individual’s parent, caretaker, or other representative, that he or she desires an
opportunity to present his or her case
to a higher authority. The State or
local agency shall not limit or interfere with the individual’s freedom to
request a hearing.
(e) Time limit for request. The State or
local agency shall provide individuals a
reasonable period of time to request
fair hearings; provided that, such time
limit is not less than 60 days from the
date the agency mails or gives the applicant or participant the notice of adverse action.
(f) Denial or dismissal of request. The
State and local agencies shall not deny
or dismiss a request for a hearing unless—
(1) The request is not received within
the time limit set by the State agency
in accordance with paragraph (e) of
this section;
(2) The request is withdrawn in writing by the appellant or a representative of the appellant;
(3) The appellant or representative
fails, without good cause, to appear at
the scheduled hearing; or
(4) The appellant has been denied participation by a previous hearing and
cannot provide evidence that circumstances relevant to Program eligibility have changed in such a way as to
justify a hearing.
(g) Continuation of benefits. Participants who appeal the termination of
benefits within the 15 days advance adverse action notice period provided by
§ 246.7(j)(6) must continue to receive
Program benefits until the hearing official reaches a decision or the certification period expires, whichever occurs
first. This does not apply to applicants
denied benefits at initial certification,
participants whose certification periods have expired, or participants who
become categorically ineligible for
benefits. Applicants who are denied
benefits at initial certification, participants whose certification periods have
expired, or participants who become
categorically ineligible during a certification period may appeal the denial
or termination within the timeframes
set by the State agency in accordance
with paragraph (e) of this section, but
must not receive benefits while awaiting the hearing or its results.
(h) Rules of procedure. State and local
agencies shall process each request for
a hearing under uniform rules of procedure and shall makes these rules of
procedure available for public inspection and copying. At a minimum, such
rules shall include: The time limits for
requesting and conducting a hearing;
all advance notice requirements; the
rules of conduct at the hearing; and the
rights and responsibilities of the appellant. The procedures shall not be unduly complex or legalistic.
(i) Hearing official. Hearings shall be
conducted by an impartial official who
does not have any personal stake or involvement in the decision and who was
not directly involved in the initial determination of the action being contested. The hearing official shall—
(1) Administer oaths or affirmations
if required by the State;
(2) Ensure that all relevant issues are
considered;
(3) Request, receive and make part of
the hearing record all evidence determined necessary to decide the issues
being raised;
(4) Regulate the conduct and course
of the hearing consistent with due
process to ensure an orderly hearing;
(5) Order, where relevant and necessary, an independent medical assessment or professional evaluation from a
source mutually satisfactory to the appellant and the State agency; and
(6) Render a hearing decision which
will resolve the dispute.
(j) Conduct of the hearing. The State
or lcoal agency shall ensure that the
hearing is accessible to the appellant
and is held within three weeks from
the date the State or local agency received the request for a hearing. The
State or local agency shall provide the
appellant with a minimum of 10 days
advance written notice of the time and
place of the hearing and shall enclose
an explanation of the hearing procedure with the notice. The State or
local agency shall also provide the appellant or representative an opportunity to—
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Food and Nutrition Service, USDA
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(1) Examine, prior to and during the
hearing, the documents and records
presented to support the decision under
appeal;
(2) Be assisted or represented by an
attorney or other persons;
(3) Bring witnesses;
(4) Advance arguments without
undue interference;
(5) Question or refute any testimony
or evidence, including an opportunity
to confront and cross-examine adverse
witnesses; and
(6) Submit evidence to establish all
pertinent facts and circumstances in
the case.
(k) Fair hearing decisions. (1) Decisions of the hearing official shall be
based upon the application of appropriate Federal law, regulations and policy as related to the facts of the case as
established in the hearing record. The
verbatim transcript or recording of testimony and exhibits, or an official report containing the substance of what
transpired at the hearing, together
with all papers and requests filed in the
proceeding, constitute the exclusive
record for a final decision by hearing
official. The State or local agency shall
retain the hearing record in accordance
with § 246.25 and make these records
available, for copying and inspection,
to the appellant or representative at
any reasonable time.
(2) The decision by the hearing official shall summarize the facts of the
case, specify the reasons for the decision, and identify the supporting evidence and the pertinent regulations or
policy. The decision shall become a
part of the record.
(3) Within 45 days of the receipt of
the request for the hearing, the State
or local agency shall notify the appellant or representative in writing of the
decision and the reasons for the decision in accordance with paragraph
(k)(2) of this section. If the decision is
in favor of the appellant and benefits
were denied or discontinued, benefits
shall begin immediately. If the decision concerns disqualification and is in
favor of the agency, as soon as administratively feasible, the local agency
shall terminate any continued benefits,
as decided by the hearing official. If
the decision regarding repayment of
benefits by the appellant is in favor of
the agency, the State or local agency
shall resume its efforts to collect the
claim, even during pendency of an appeal of a local-level fair hearing decision to the State agency. The appellant
may appeal a local hearing decision to
the State agency, provided that the request for appeal is made within 15 days
of the mailing date of the hearing decision notice. If the decision being appealed concerns disqualification from
the Program, the appellant shall not
continue to receive benefits while an
appeal to the State agency of a decision rendered on appeal at the local
level is pending. The decision of a hearing official at the local level is binding
on the local agency and the State agency unless it is appealed to the State
level and overturned by the State hearing official.
(4) The State and local agency shall
make all hearing records and decisions
available for public inspection and
copying; however, the names and addresses of participants and other members of the public shall be kept confidential.
(l) Judicial review. If a State level decision upholds the agency action and
the appellant expresses an interest in
pursuing a higher review of the decision, the State agency shall explain
any further State level review of the
decision and any State level rehearing
process. If these are either unavailable
or have been exhausted, the State
agency shall explain the right to pursue judicial review of the decision.
[50 FR 6121, Feb. 13, 1985, as amended at 52
FR 21236, June 4, 1987; 59 FR 11503, Mar. 11,
1994; 71 FR 56730, Sept. 27, 2006; 73 FR 11312,
Mar. 3, 2008]
Subpart D—Participant Benefits
§ 246.10 Supplemental foods.
(a) General. This section prescribes
the requirements for providing supplemental foods to participants. The State
agency must ensure that local agencies
comply with this section.
(b) State agency responsibilities. (1)
State agencies may:
(i) Establish criteria in addition to
the minimum Federal requirements in
Table 4 of paragraph (e)(12) of this section for the supplemental foods in their
States, except that the State agency
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§ 246.10
7 CFR Ch. II (1–1–18 Edition)
may not selectively choose which eligible fruits and vegetables are available
to participants. These State agency
criteria could address, but not be limited to, other nutritional standards,
competitive cost, State-wide availability, and participant appeal. For eligible fruits and vegetables, State agencies may restrict packaging, e.g., plastic containers, and package sizes, such
as single serving, of processed fruits
and vegetables available for purchase
with the cash-value voucher. In addition, State agencies may identify certain processed WIC-eligible fruits and
vegetables on food lists where the potential exists for vendor or participant
confusion in determining authorized
WIC-eligible items.
(ii) Make food package adjustments
to better accommodate participants
who are homeless. At the State agency’s option, these adjustments would
include, but not be limited to, issuing
authorized supplemental foods in individual serving-size containers to accommodate lack of food storage or
preparation facilities.
(2) State agencies must:
(i) Identify the brands of foods and
package sizes that are acceptable for
use in the Program in their States in
accordance with the requirements of
this section. State agencies must also
provide to local agencies, and include
in the State Plan, a list of acceptable
foods and their maximum monthly allowances as specified in Tables 1
through 4 of paragraphs (e)(9) through
(e)(12) of this section; and
(ii) Ensure that local agencies:
(A) Make available to participants
the maximum monthly allowances of
authorized supplemental foods, except
as noted in paragraph (c) of this section, and abide by the authorized substitution rates for WIC food substitutions as specified in Tables 1 through
3 of paragraphs (e)(9) through (e)(11) of
this section;
(B) Make available to participants
more than one food from each WIC food
category except for the categories of
peanut butter and eggs, and any of the
WIC-eligible fruits and vegetables
(fresh or processed) in each authorized
food package as listed in paragraph (e)
of this section;
(C) Authorize only a competent professional authority to prescribe the
categories of authorized supplemental
foods in quantities that do not exceed
the regulatory maximum and are appropriate for the participant, taking
into consideration the participant’s nutritional and breastfeeding needs; and
(D) Advise participants or their caretaker, when appropriate, that the supplemental foods issued are only for
their personal use. However, the supplemental foods are not authorized for
participant use while hospitalized on
an in-patient basis. In addition, consistent with § 246.7(m)(1)(i)(B), supplemental foods are not authorized for use
in the preparation of meals served in a
communal food service. This restriction does not preclude the provision or
use of supplemental foods for individual participants in a nonresidential
setting (e.g., child care facility, family
day care home, school, or other educational program); a homeless facility
that meets the requirements of
§ 246.7(m)(1); or, at the State agency’s
discretion, a residential institution
(e.g., home for pregnant teens, prison,
or residential drug treatment center)
that meets the requirements currently
set forth in § 246.7(m)(1) and (m)(2).
(c) Nutrition tailoring. The full maximum monthly allowances of all supplemental foods in all food packages
must be made available to participants
if medically or nutritionally warranted. Reductions in these amounts
cannot be made for cost-savings, administrative
convenience,
caseload
management, or to control vendor
abuse. Reductions in these amounts
cannot be made for categories, groups
or subgroups of WIC participants. The
provision of less than the maximum
monthly allowances of supplemental
foods to an individual WIC participant
in all food packages is appropriate only
when:
(1) Medically or nutritionally warranted (e.g., to eliminate a food due to
a food allergy);
(2) A participant refuses or cannot
use the maximum monthly allowances;
or
(3) The quantities necessary to supplement another programs’ contribution to fill a medical prescription
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Food and Nutrition Service, USDA
§ 246.10
would be less than the maximum
monthly allowances.
(d) Medical documentation—(1) Supplemental foods requiring medical documentation. Medical documentation is
required for the issuance of the following supplemental foods:
(i) Any non-contract brand infant
formula;
(ii) Any infant formula prescribed to
an infant, child, or adult who receives
Food Package III;
(iii) Any exempt infant formula;
(iv) Any WIC-eligible nutritional;
(v) Any authorized supplemental food
issued to participants who receive Food
Package III;
(vi) Any contract brand infant formula that does not meet the requirements in Table 4 of paragraph (e)(12) of
this section.
(2) Medical documentation for other
supplemental foods. (i) State agencies
may authorize local agencies to issue a
non-contract brand infant formula that
meets the requirements in Table 4 of
paragraph (e)(12) of this section without medical documentation in order to
meet religious eating patterns; and
(ii) The State agency has the discretion to require medical documentation
for any contract brand infant formula
other than the primary contract infant
formula and may decide that some contract brand infant formula may not be
issued under any circumstances.
(3) Medical Determination. For purposes of this program, medical documentation means that a health care
professional licensed to write medical
prescriptions under State law has:
(i) Made a medical determination
that the participant has a qualifying
condition as described in paragraphs
(e)(1) through (e)(7) of this section that
dictates the use of the supplemental
foods, as described in paragraph (d)(1)
of this section; and
(ii) Provided the written documentation that meets the technical requirements described in paragraphs (d)(4)(ii)
and (d)(4)(iii) of this section.
(4) Technical Requirements—(i) Location. All medical documentation must
be kept on file (electronic or hard
copy) at the local clinic. The medical
documentation kept on file must include the initial telephone documenta-
tion, when received as described in
paragraph (d)(4)(iii)(B) of this section.
(ii) Content. All medical documentation must include the following:
(A) The name of the authorized WIC
formula (infant formula, exempt infant
formula, WIC-eligible nutritional) prescribed, including amount needed per
day;
(B) The authorized supplemental
food(s) appropriate for the qualifying
condition(s)
and
their
prescribed
amounts;
(C) Length of time the prescribed
WIC formula and/or supplemental food
is required by the participant;
(D) The qualifying condition(s) for
issuance of the authorized supplemental food(s) requiring medical documentation, as described in paragraphs
(e)(1) through (e)(7) of this section; and
(E) Signature, date and contact information (or name, date and contact information), if the initial medical documentation was received by telephone
and the signed document is forthcoming, of the health care professional
licensed by the State to write prescriptions in accordance with State laws.
(iii) Written confirmation—(A) General.
Medical documentation must be written and may be provided as an original
written document, an electronic document, by facsimile or by telephone to a
competent professional authority until
written confirmation is received.
(B) Medical documentation provided by
telephone. Medical documentation may
be provided by telephone to a competent professional authority who
must promptly document the information. The collection of the required information by telephone for medical
documentation purposes may only be
used until written confirmation is received from a health care professional
licensed to write medical prescriptions
and used only when absolutely necessary on an individual participant
basis. The local clinic must obtain
written confirmation of the medical
documentation within a reasonable
amount of time (i.e., one or two week’s
time) after accepting the initial medical documentation by telephone.
(5) Medical supervision requirements.
Due to the nature of the health conditions of participants who are issued
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§ 246.10
7 CFR Ch. II (1–1–18 Edition)
supplemental foods that require medical documentation, close medical supervision is essential for each participant’s dietary management. The responsibility remains with the participant’s health care provider for this
medical oversight and instruction. This
responsibility cannot be assumed by
personnel at the WIC State or local
agency. However, it would be the responsibility of the WIC competent professional authority to ensure that only
the amounts of supplemental foods prescribed by the participant’s health care
provider are issued in the participant’s
food package.
(e) Food packages. There are seven
food packages available under the Program that may be provided to participants. The authorized supplemental
foods must be prescribed from food
packages according to the category and
nutritional needs of the participants.
Breastfeeding assessment and the
mother’s plans for breastfeeding serve
as the basis for determining food package issuance for all breastfeeding
women. The intent of the WIC Program
is that all breastfeeding women be supported to exclusively breastfeed their
infants and to choose the fully
breastfeeding food package without infant formula. Breastfeeding mothers
whose infants receive formula from
WIC are to be supported to breastfeed
to the maximum extent possible with
minimal supplementation with infant
formula. Formula amounts issued to
breastfed infants are to be tailored to
meet but not exceed the infant’s nutritional needs. The seven food packages
are as follows:
(1) Food Package I—Infants birth
through 5 months—(i) Participant category served. This food package is designed for issuance to infant participants from birth through age 5 months
who do not have a condition qualifying
them to receive Food Package III. The
following infant feeding variations are
defined for the purposes of assigning
food quantities and types in Food
Packages I: Fully breastfeeding (the
infant doesn’t receive formula from the
WIC Program); partially (mostly)
breastfeeding (the infant is breastfed
but also receives infant formula from
WIC up to the maximum allowance described for partially (mostly) breastfed
infants in Table 1 of paragraph (e)(9) of
this section; and fully formula fed (the
infant is not breastfed or is breastfed
minimally (the infant receives infant
formula from WIC in quantities that
exceed those allowed for partially
(mostly) breastfed infants).
(ii) Infant feeding age categories—(A)
Birth to one month. Two infant food
packages are available during the first
month after birth—fully breastfeeding
and fully formula-feeding. State agencies also have the option to make
available a third food package containing not more than one can of powder infant formula in the container size
that provides closest to 104 reconstituted fluid ounces to breastfed infants
on a case-by-case basis. The infant receiving this food package is considered
partially breastfeeding. State agencies
choosing to make available a partially
breastfeeding package in the first
month may not standardize issuance of
this food package. Infant formula may
not be routinely provided during the
first month after birth to breastfed infants in order to support the successful
establishment of breastfeeding.
(B) One through 5 months. Three infant food packages are available from 1
months
through
5
months—fully
breastfeeding,
partially
(mostly)
breastfeeding, or fully formula-fed.
(iii) Infant formula requirements. This
food package provides iron-fortified infant formula that is not an exempt infant formula and that meets the requirements in Table 4 of paragraph
(e)(12) of this section. The issuance of
any contract brand or noncontract
brand infant formula that contains less
than 10 milligrams of iron per liter (at
least 1.5 milligrams iron per 100
kilocalories) at standard dilution is
prohibited. Except as specified in paragraph (d) of this section, local agencies
must issue as the first choice of
issuance the primary contract infant
formula, as defined in § 246.2, with all
other infant formulas issued as an alternative to the primary contract infant formula. Noncontract brand infant
formula and any contract brand infant
formula that does not meet the requirements in Table 4 of paragraph
(e)(12) of this section may be issued in
this food package only with medical
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Food and Nutrition Service, USDA
§ 246.10
documentation of the qualifying condition. A health care professional licensed by the State to write prescriptions must make a medical determination and provide medical documentation that indicates the need for the infant formula. For situations that do
not require the use of an exempt infant
formula, such determinations include,
but are not limited to, documented formula intolerance, food allergy or inappropriate growth pattern. Medical documentation must meet the requirements described in paragraph (d) of
this section.
(iv) Physical forms. Local agencies
must issue all WIC formulas (WIC formulas mean all infant formula, exempt
infant
formula
and
WIC-eligible
nutritionals) in concentrated liquid or
powder physical forms. Ready-to-feed
WIC formulas may be authorized when
the competent professional authority
determines and documents that:
(A) The participant’s household has
an unsanitary or restricted water supply or poor refrigeration;
(B) The person caring for the participant may have difficulty in correctly
diluting concentrated or powder forms;
or
(C) The WIC infant formula is only
available in ready-to-feed.
(v) Authorized category of supplemental
foods. Infant formula is the only category of supplemental foods authorized
in this food package. Exempt infant
formulas and WIC-eligible nutritionals
are authorized only in Food Package
III. The maximum monthly allowances,
allowed options and substitution rates
of supplemental foods for infants in
Food Packages I are stated in Table 1
of paragraph (e)(9) of this section.
(2) Food Package II—Infants 6 through
11 months—(i) Participant category
served. This food package is designed
for issuance to infant participants from
6 through 11 months of age who do not
have a condition qualifying them to receive Food Package III.
(ii) Infant food packages. Three food
packages for infants 6 through 11
months
are
available
—
fully
breastfeeding,
partially
(mostly)
breastfeeding, or fully formula fed.
(iii) Infant formula requirements. The
requirements for issuance of infant formula in Food Package I, specified in
paragraphs (e)(1)(iii) and (e)(1)(iv) of
this section, also apply to the issuance
of infant formula in Food Package II.
(iv) Authorized categories of supplemental foods. Infant formula, infant cereal, and infant foods are the categories of supplemental foods authorized in this food package. The maximum monthly allowances, allowed options and substitution rates of supplemental foods for infants in Food Packages II are stated in Table 1 of paragraph (e)(9) of this section.
(3) Food Package III—Participants with
qualifying conditions—(i) Participant category served and qualifying conditions.
This food package is reserved for
issuance to women, infants and child
participants who have a documented
qualifying condition that requires the
use of a WIC formula (infant formula,
exempt infant formula or WIC-eligible
nutritional) because the use of conventional foods is precluded, restricted, or
inadequate to address their special nutritional needs. Medical documentation
must meet the requirements described
in paragraph (d) of this section. Participants who are eligible to receive
this food package must have one or
more qualifying conditions, as determined by a health care professional licensed to write medical prescriptions
under State law. The qualifying conditions include but are not limited to
premature birth, low birth weight, failure to thrive, inborn errors of metabolism and metabolic disorders, gastrointestinal
disorders,
malabsorption
syndromes, immune system disorders,
severe food allergies that require an
elemental formula, and life threatening disorders, diseases and medical
conditions that impair ingestion, digestion, absorption or the utilization of
nutrients that could adversely affect
the participant’s nutrition status. This
food package may not be issued solely
for the purpose of enhancing nutrient
intake or managing body weight.
(ii) Non-authorized issuance of Food
Package III. This food package is not
authorized for:
(A) Infants whose only condition is:
(1) A diagnosed formula intolerance
or food allergy to lactose, sucrose,
milk protein or soy protein that does
not require the use of an exempt infant
formula; or
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§ 246.10
7 CFR Ch. II (1–1–18 Edition)
(2) A non-specific formula or food intolerance.
(B) Women and children who have a
food intolerance to lactose or milk protein that can be successfully managed
with the use of one of the other WIC
food packages (i.e., Food Packages IV–
VII); or
(C) Any participant solely for the
purpose of enhancing nutrient intake
or managing body weight without an
underlying qualifying condition.
(iii) Restrictions on the issuance of WIC
formulas in ready-to-feed (RTF) forms.
WIC State agencies must issue WIC formulas (infant formula, exempt infant
formula and WIC-eligible nutritionals)
in concentrated liquid or powder physical forms unless the requirements for
issuing RTF are met as described in
paragraph (e)(1)(iv) of this section. In
addition to those requirements, there
are two additional conditions which
may be used to issue RTF in Food
Package III:
(A) If a ready-to-feed form better accommodates the participant’s condition; or
(B) If it improves the participant’s
compliance in consuming the prescribed WIC formula.
(iv) Unauthorized WIC costs. All apparatus or devices (e.g., enteral feeding
tubes, bags and pumps) designed to administer WIC formulas are not allowable WIC costs.
(v) Authorized categories of supplemental foods. The supplemental foods
authorized in this food package require
medical documentation for issuance
and include WIC formula (infant formula, exempt infant formula, and WICeligible nutritionals), infant cereal, infant foods, milk, cheese, eggs, canned
fish, fresh fruits and vegetables, breakfast cereal, whole wheat/whole grain
bread, juice, legumes and/or peanut
butter. The maximum monthly allowances, allowed options and substitution
rates of supplemental foods for infants
in Food Package III are stated in Table
1 of paragraph (e)(9) of this section.
The maximum monthly allowances, allowed options, and substitution rates
of supplemental foods for children and
women in Food Package III are stated
in Table 3 of paragraph (e)(11) of this
section.
(vi) Coordination with medical payors
and other programs that provide or reimburse for formulas. WIC State agencies
must coordinate with other Federal,
State or local government agencies or
with private agencies that operate programs that also provide or could reimburse for exempt infant formulas and
WIC-eligible nutritionals benefits to
mutual participants. At a minimum, a
WIC State agency must coordinate
with the State Medicaid Program for
the provision of exempt infant formulas and WIC-eligible nutritionals
that are authorized or could be authorized under the State Medicaid Program
for reimbursement and that are prescribed for WIC participants who are
also Medicaid recipients. The WIC
State agency is responsible for providing up to the maximum amount of
exempt infant formulas and WIC-eligible nutritionals under Food Package
III in situations where reimbursement
is not provided by another entity.
(4) Food Package IV—Children 1
through 4 years—(i) Participant category
served. This food package is designed
for issuance to participants 1 through 4
years of age who do not have a condition qualifying them to receive Food
Package III.
(ii) Authorized categories of supplemental foods. Milk, breakfast cereal,
juice, fresh fruits and vegetables, whole
wheat/whole grain bread, eggs, and legumes or peanut butter are the categories of supplemental foods authorized in this food package. The maximum monthly allowances, allowed options and substitution rates of supplemental foods for children in Food
Package IV are stated in Table 2 of
paragraph (e)(10) of this section.
(5) Food Package V—Pregnant and partially (mostly) breastfeeding women—(i)
Participant category served. This food
package is designed for issuance to
women participants with singleton
pregnancies who do not have a condition qualifying them to receive Food
Package III. This food package is also
designed for issuance to partially
(mostly) breastfeeding women participants, up to 1 year postpartum, who do
not have a condition qualifying them
to receive Food Package III and whose
partially (mostly) breastfed infants receive formula from the WIC program in
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amounts that do not exceed the maximum allowances described in Table 1
of paragraph (e)(9) of this section.
Women participants partially (mostly)
breastfeeding more than one infant
from the same pregnancy, pregnant
women fully or partially breastfeeding
singleton infants, and women participants pregnant with two or more
fetuses, are eligible to receive Food
Package VII as described in paragraph
(e)(7) of this section.
(ii) Authorized categories of supplemental foods. Milk, breakfast cereal,
juice, fresh fruits and vegetables, whole
wheat/whole grain bread, eggs, legumes
and peanut butter are the categories of
supplemental foods authorized in this
food package. The maximum monthly
allowances, allowed options and substitution rates of supplemental foods for
women in Food Package V are stated
in Table 2 of paragraph (e)(10) of this
section.
(6) Food Package VI—Postpartum
women—(i) Participant category served.
This food package is designed for
issuance to women up to 6 months
postpartum who are not breastfeeding
their infants, and to breastfeeding
women up to 6 months postpartum
whose participating infant receives
more than the maximum amount of
formula allowed for partially (mostly)
breastfed infants as described in Table
1 of paragraph (e)(9) of this section, and
who do not have a condition qualifying
them to receive Food Package III.
(ii) Authorized categories of supplemental foods. Milk, breakfast cereal,
juice, fresh fruits and vegetables, eggs,
and legumes or peanut butter are the
categories of supplemental foods authorized in this food package. The maximum monthly allowances, allowed options and substitution rates of supplemental foods for women in Food Package VI are stated in Table 2 of paragraph (e)(10) of this section.
(7)
Food
Package
VII—Fully
breastfeeding—(i) Participant category
served. This food package is designed
for issuance to breastfeeding women up
to 1 year postpartum whose infants do
not receive infant formula from WIC
(these breastfeeding women are assumed to be exclusively breastfeeding
their infants), and who do not have a
condition qualifying them to receive
Food Package III. This food package is
also designed for issuance to women
participants pregnant with two or
more fetuses, women participants partially (mostly) breastfeeding multiple
infants from the same pregnancy, and
pregnant women who are also partially
(mostly) breastfeeding singleton infants, and who do not have a condition
qualifying them to receive Food Package III. Women participants fully
breastfeeding multiple infants from the
same pregnancy receive 1.5 times the
supplemental foods provided in Food
Package VII.
(ii) Authorized categories of supplemental foods. Milk, cheese, breakfast
cereal, juice, fresh fruits and vegetables, whole wheat/whole grain bread,
eggs, legumes, peanut butter, and
canned fish are the categories of supplemental foods authorized in this food
package. The maximum monthly allowances, allowed options and substitution rates of supplemental foods for
women in Food Package VII are stated
in Table 2 of paragraph (e)(10) of this
section.
(8)
Supplemental
Foods—Maximum
monthly allowances, options and substitution rates, and minimum requirements.
Tables 1 through 3 of paragraphs (e)(9)
through (e)(11) of this section specify
the maximum monthly allowances of
foods in WIC food packages and identify WIC food options and substitution
rates. Table 4 of paragraph (e)(12) of
this section describes the minimum requirements and specifications of supplemental foods in the WIC food packages.
(9) Full nutrition benefit and maximum monthly allowances, options and
substitution rates of supplemental
foods for infants in Food Packages I, II
and III are stated in Table 1 as follows:
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§ 246.10
7 CFR Ch. II (1–1–18 Edition)
TABLE 1—FULL NUTRITION BENEFIT (FNB) AND MAXIMUM MONTHLY ALLOWANCES (MMA) OF
SUPPLEMENTAL FOODS FOR INFANTS IN FOOD PACKAGES I, II AND III
Fully formula fed (FF)
Foods 1
WIC Formula
45678
Partially (mostly) breastfed (BF/FF)
Food Packages
I–FF &
III–FF
A: 0 through 3
months
B: 4 through 5
months
Food Packages
II–FF &
III–FF
6 through 11
months
A: FNB = 806 fl
oz, MMA =
823 fl oz, reconstituted liquid concentrate
or 832 fl. oz.
RTF or 870 fl
oz reconstituted powder.
FNB = 624 fl oz,
MMA = 630 fl
oz, reconstituted liquid
concentrate.
or 643 fl. oz RTF
or 696 fl oz reconstituted
powder.
Food Packages
I–BF/FF & III BF/
FF
(A: 0 to 1
month 2 3)
B: 1 through 3
months
C: 4 through 5
months
A: 104 fl oz reconstituted
powder.
B: FNB = 364 fl
oz, MMA =
388 fl oz, reconstituted liquid concentrate
or 384 fl oz
RTF or 435 fl
oz reconstituted powder.
Fully breastfed (BF)
Food Packages
II–BF/FF & III
BF/FF
6 through 11
months
Food
Package
I–BF
0 through 5
months
Food
Package
II–BF
6 through
11 months
FNB = 312 fl oz,
MMA = 315 fl
oz, reconstituted liquid
concentrate or
338 fl oz RTF
or 384 fl oz reconstituted
powder.
B: FNB = 884 fl
oz, MMA =
896 fl oz, reconstituted liquid concentrate
or 913 fl oz
RTF or 960 fl
oz reconstituted powder.
kpayne on DSK54DXVN1OFR with $$_JOB
Infant Cereal 9 11 ....
Infant food fruits
and vegetables
9 10 11 12 13.
Infant food meat 9 ..
............................
............................
24 oz ..................
128 oz ................
C: FNB = 442 fl
oz, MMA =
460 fl oz, reconstituted liquid concentrate
or 474 fl oz
RTF or 522 fl
oz reconstituted powder.
............................
............................
............................
............................
............................
24 oz ..................
128 oz ................
...................
...................
24 oz.
256 oz.
............................
...................
77.5 oz.
Table 1 footnotes: (Abbreviations in order of appearance in table): FF = fully formula fed; BF/FF = partially (mostly) breastfed;
BF = fully breastfed; RTF = Ready-to-feed; N/A = the supplemental food is not authorized in the corresponding food package.
1 Table 4 of paragraph (e)(12) of this section describes the minimum requirements and specifications for the supplemental
foods. The competent professional authority (CPA) is authorized to determine nutritional risk and prescribe supplemental foods
as established by State agency policy in Food Packages I and II. In Food Package III, the CPA, as established by State agency
policy, is authorized to determine nutritional risk and prescribe supplemental foods per medical documentation.
2 State agencies have the option to issue not more than one can of powder infant formula in the container size that provides
closest to 104 reconstituted fluid ounces to breastfed infants on a case-by-case basis.
3 Liquid concentrate and ready-to-feed (RTF) may be substituted at rates that provide comparable nutritive value.
4 WIC formula means infant formula, exempt infant formula, or WIC-eligible nutritionals. Infant formula may be issued for infants in Food Packages I, II and III. Medical documentation is required for issuance of infant formula, exempt infant formula,
WIC-eligible nutritionals, and other supplemental foods in Food Package III. Only infant formula may be issued for infants in
Food Packages I and II.
5 The full nutrition benefit is defined as the minimum amount of reconstituted fluid ounces of liquid concentrate infant formula
as specified for each infant food package category and feeding variation (e.g., Food Package IA-fully formula fed).
6 The maximum monthly allowance is specified in reconstituted fluid ounces for liquid concentrate, RTF liquid, and powder
forms of infant formula and exempt infant formula. Reconstituted fluid ounce is the form prepared for consumption as directed on
the container.
7 State agencies must provide at least the full nutrition benefit authorized to non-breastfed infants up to the maximum monthly
allowance for the physical form of the product specified for each food package category. State agencies must issue whole containers that are all the same size of the same physical form. Infant formula amounts for breastfed infants, even those in the fully
formula fed category should be individually tailored to the amounts that meet their nutritional needs.
8 State agencies may round up and disperse whole containers of infant formula over the food package timeframe to allow participants to receive the full nutrition benefit. State agencies must use the methodology described in accordance with paragraph
(h)(1) of this section.
9 State agencies may round up and disperse whole containers of infant foods (infant cereal, fruits and vegetables, and meat)
over the Food Package timeframe. State agencies must use the methodology described in accordance with paragraph (h)(2) of
this section.
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Food and Nutrition Service, USDA
§ 246.10
10 At State agency option, for infants 6–12 months of age, fresh banana may replace up to 16 ounces of infant food fruit at a
rate of 1 pound of bananas per 8 ounces of infant food fruit. State agencies may also substitute fresh bananas at a rate of 1 banana per 4 ounces of jarred infant food fruit, up to a maximum of 16 ounces.
11 In lieu of infant foods (cereal, fruit and vegetables), infants greater than 6 months of age in Food Package III may receive infant formula, exempt infant formula or WIC-eligible nutritionals at the same maximum monthly allowance as infants ages 4
through 5 months of age of the same feeding option.
12 At State agency option, infants 9 months through 11 months in Food Packages II and III may receive a cash-value voucher
to purchase fresh (only) fruits and vegetables in lieu of a portion of the infant food fruits and vegetables. Partially (mostly)
breastfed infants and fully formula fed infants may receive a $4 cash-value voucher plus 64 ounces of infant food fruits and
vegetables; fully breastfeeding infants may receive a $8 cash-value voucher plus 128 ounces of infant food fruit and vegetables.
13 State agencies may not categorically issue cash-value vouchers for infants 9 months through 11 months. The cash-value
voucher is to be provided to the participant only after an individual nutrition assessment, as established by State agency policy,
and is optional for the participant, i.e., the mother may choose to receive either the maximum allowance of jarred foods or a
combination of jarred foods and a fruit and vegetable cash-value voucher for her infant. State agencies must ensure that appropriate nutrition education is provided to the caregiver addressing safe food preparation, storage techniques, and feeding practices to make certain participants are meeting their nutritional needs in a safe and effective manner.
(10) Maximum monthly allowances of
supplemental foods in Food Packages IV
through VII. The maximum monthly allowances, options and substitution
rates of supplemental foods for children and women in Food Package IV
through VII are stated in Table 2 as
follows:
TABLE 2—MAXIMUM MONTHLY ALLOWANCES OF SUPPLEMENTAL FOODS FOR CHILDREN AND WOMEN
IN FOOD PACKAGES IV, V, VI AND VII
Children
Foods 1
kpayne on DSK54DXVN1OFR with $$_JOB
Juice, single strength 6 ........
Milk, fluid .............................
Breakfast cereal 13 ..............
Cheese ................................
Eggs ....................................
Fresh fruits and vegetables 14 15.
Whole wheat or whole grain
bread 16.
Fish (canned) ......................
Legumes, dry 17 and/or Peanut butter.
Women
Food Package IV: 1
through 4 years
Food Package V:
Pregnant and Partially
(Mostly) Breastfeeding
(up to 1 year
postpartum) 2
Food Package VI:
Postpartum (up to 6
months postpartum) 3
128 fl oz .....................
16 qt 7 8 9 10 11 ..............
36 oz ..........................
N/A .............................
1 dozen ......................
$8.00 in cash-value
vouchers.
2 lb .............................
144 fl oz .....................
22 qt 7 8 9 10 12 ..............
36 oz ..........................
N/A .............................
1 dozen ......................
$10.00 in cash-value
vouchers.
1 lb .............................
96 fl oz .......................
16 qt 7 8 9 10 12 ..............
36 oz ..........................
N/A .............................
1 dozen ......................
$10.00 in cash-value
vouchers.
N/A .............................
144 fl oz.
24 qt 7 8 9 10 12.
36 oz.
1 lb.
2 dozen.
$10.00 in cash-value
vouchers.
1 lb.
N/A .............................
1 lb or 18 oz ...............
N/A .............................
1 lb and 18 oz ............
N/A .............................
1 lb or 18 oz ...............
30 oz.
1 lb and 18 oz.
Food Package VII:
Fully Breastfeeding
(up to 1 year postpartum) 4 5
Table 2 Footnotes: N/A = the supplemental food is not authorized in the corresponding food package.
1 Table 4 of paragraph (e)(12) of this section describes the minimum requirements and specifications for the supplemental
foods. The competent professional authority (CPA) is authorized to determine nutritional risk and prescribe supplemental foods
as established by State agency policy.
2 Food Package V is issued to two categories of WIC participants: Women participants with singleton pregnancies;
breastfeeding women whose partially (mostly) breastfed infants receive formula from the WIC Program in amounts that do not
exceed the maximum formula allowances, as appropriate for the age of the infant as described in Table 1 of paragraph (e)(9) of
this section.
3 Food Package VI is issued to two categories of WIC participants: Non-breastfeeding postpartum women and breastfeeding
postpartum women whose infants receive more than the maximum infant formula allowances, as appropriate for the age of the
infant as described in Table 1 of paragraph (e)(9) of this section.
4 Food Package VII is issued to four categories of WIC participants: Fully breastfeeding women whose infants do not receive
formula from the WIC Program; women pregnant with two or more fetuses; women partially (mostly) breastfeeding multiple infants from the same pregnancy; and pregnant women who are also fully or partially (mostly) breastfeeding singleton infants.
5 Women fully breastfeeding multiple infants from the same pregnancy are prescribed 1.5 times the maximum allowances.
6 Combinations of single-strength and concentrated juices may be issued provided that the total volume does not exceed the
maximum monthly allowance for single-strength juice.
7 Whole milk is the standard milk for issuance to 1-year-old children (12 through 23 months). At State agency option, fat-reduced milks may be issued to 1-year-old children for whom overweight or obesity is a concern. The need for fat-reduced milks
for 1-year-old children must be based on an individual nutritional assessment and consultation with the child’s health care provider if necessary, as established by State agency policy. Lowfat (1%) or nonfat milks are the standard milk for issuance to children ≥24 months of age and women. Reduced fat (2%) milk is authorized only for participants with certain conditions, including
but not limited to, underweight and maternal weight loss during pregnancy. The need for reduced fat (2%) milk for children ≥24
months of age (Food Package IV) and women (Food Packages V–VII) must be based on an individual nutritional assessment as
established by State agency policy.
8 Evaporated milk may be substituted at the rate of 16 fluid ounces of evaporated milk per 32 fluid ounces of fluid milk or a 1:2
fluid ounce substitution ratio. Dry milk may be substituted at an equal reconstituted rate to fluid milk.
9 For children and women, cheese may be substituted for milk at the rate of 1 pound of cheese per 3 quarts of milk. For children and women in Food Packages IV–VI, no more than 1 pound of cheese may be substituted. For fully breastfeeding women
in Food Package VII, no more than 2 pounds of cheese may be substituted for milk. State agencies do not have the option to
issue additional amounts of cheese beyond these maximums even with medical documentation. (No more than a total of 4
quarts of milk may be substituted for a combination of cheese, yogurt or tofu for children and women in Food Packages IV–VI.
No more than a total of 6 quarts of milk may be substituted for a combination of cheese, yogurt or tofu for women in Food Package VII.)
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§ 246.10
7 CFR Ch. II (1–1–18 Edition)
10 For children and women, yogurt may be substituted for fluid milk at the rate of 1 quart of yogurt per 1 quart of milk; a maximum of 1 quart of milk can be substituted. Additional amounts of yogurt are not authorized. Whole yogurt is the standard yogurt
for issuance to 1-year-old children (12 through 23 months). At State agency option, lowfat or nonfat yogurt may be issued to 1year-old children for whom overweight and obesity is a concern. The need for lowfat or nonfat yogurt for 1-year-old children must
be based on an individual nutritional assessment and consultation with the child’s health care provider if necessary, as established by State agency policy. Lowfat or nonfat yogurts are the only types of yogurt authorized for children ≥24 months of age
and women. (No more than a total of 4 quarts of milk may be substituted for a combination of cheese, yogurt or tofu for children
and women in Food Packages IV–VI. No more than a total of 6 quarts of milk may be substituted for a combination of cheese,
yogurt or tofu for women in Food Package VII.)
11 For children, issuance of tofu and soy-based beverage as substitutes for milk must be based on an individual nutritional assessment and consultation with the participant’s health care provider if necessary, as established by State agency policy. Such
determination can be made for situations that include, but are not limited to, milk allergy, lactose intolerance, and vegan diets.
Soy-based beverage may be substituted for milk for children on a quart for quart basis up to the total maximum allowance of
milk. Tofu may be substituted for milk for children at the rate of 1 pound of tofu per 1 quart of milk. (No more than a total of 4
quarts of milk may be substituted for a combination of cheese, yogurt or tofu for children in Food Package IV.) Additional
amounts of tofu may be substituted, up to the maximum allowance for fluid milk for lactose intolerance or other reasons, as established by State agency policy.
12 For women, soy-based beverage may be substituted for milk on a quart for quart basis up to the total maximum allowance
of milk. Tofu may be substituted for milk at the rate of 1 pound of tofu per 1 quart of milk. (No more than a total of 4 quarts of
milk may be substituted for a combination of cheese, yogurt or tofu for women in Food Packages V and VI. No more than a total
of 6 quarts of milk may be substituted for a combination of cheese, yogurt or tofu for women in Food Package VII.). Additional
amounts of tofu may be substituted, up to the maximum allowances for fluid milk, for lactose intolerance or other reasons, as established by State agency policy.
13 At least one-half of the total number of breakfast cereals on the State agency’s authorized food list must have whole grain
as the primary ingredient and meet labeling requirements for making a health claim as a ‘‘whole grain food with moderate fat
content’’ as defined in Table 4 of paragraph (e)(12) of this section.
14 Both fresh fruits and fresh vegetables must be authorized by State agencies. Processed fruits and vegetables, i.e., canned
(shelf-stable), frozen, and/or dried fruits and vegetables may also be authorized to offer a wider variety and choice for participants. State agencies may choose to authorize one or more of the following processed fruits and vegetables: canned fruit,
canned vegetables, frozen fruit, frozen vegetables, dried fruit, and/or dried vegetables. The cash-value voucher may be redeemed for any eligible fruit and vegetable (refer to Table 4 of paragraph (e)(12) of this section and its footnotes). Except as authorized in paragraph (b)(1)(i) of this section, State agencies may not selectively choose which fruits and vegetables are available to participants. For example, if a State agency chooses to offer dried fruits, it must authorize all WIC-eligible dried fruits.
15 The monthly value of the fruit/vegetable cash-value vouchers will be adjusted annually for inflation as described in
§ 246.16(j).
16 Whole wheat and/or whole grain bread must be authorized. State agencies have the option to also authorize brown rice,
bulgur, oatmeal, whole-grain barley, whole wheat macaroni products, or soft corn or whole wheat tortillas on an equal weight
basis.
17 Canned legumes may be substituted for dry legumes at the rate of 64 oz. (e.g., four 16-oz cans) of canned beans for 1
pound dry beans. In Food Packages V and VII, both beans and peanut butter must be provided. However, when individually tailoring Food Packages V or VII for nutritional reasons (e.g., food allergy, underweight, participant preference), State agencies
have the option to authorize the following substitutions: 1 pound dry and 64 oz. canned beans/peas (and no peanut butter); or 2
pounds dry or 128 oz. canned beans/peas (and no peanut butter); or 36 oz. peanut butter (and no beans).
(11) Maximum monthly allowances of
supplemental foods for children and
women with qualifying conditions in Food
Package III. The maximum monthly allowances, options and substitution
rates of supplemental foods for participants with qualifying conditions in
Food Package III are stated in Table 3
as follows:
TABLE 3—MAXIMUM MONTHLY ALLOWANCES (MMA) OF SUPPLEMENTAL FOODS FOR CHILDREN AND
WOMEN WITH QUALIFYING CONDITIONS IN FOOD PACKAGE III
Children
Foods 1
Juice, single strength 6
WIC Formula 7 8 ...........
kpayne on DSK54DXVN1OFR with $$_JOB
Milk ...............................
Breakfast cereal 15 16 ...
Cheese .........................
Eggs .............................
Fruits and vegetables 17 18 19.
Whole wheat or whole
grain bread 20.
Fish (canned) ...............
Legumes, dry 21 and/or
Peanut butter.
Women
1 through 4 years
Pregnant and partially
breastfeeding (up to 1
year postpartum) 2
Postpartum (up to 6
months postpartum) 3
Fully breastfeeding, (up
to 1 year postpartum) 4 5
128 fl oz .......................
455 fl oz liquid concentrate.
16 qt 9 10 11 12 13 ............
36 oz ............................
N/A ...............................
1 dozen ........................
$8.00 in cash-value
vouchers.
2 lb ...............................
144 fl oz .......................
455 fl oz liquid concentrate.
22 qt 9 10 11 12 14 ............
36 oz ............................
N/A ...............................
1 dozen ........................
$10.00 in cash-value
vouchers.
1 lb ...............................
96 fl oz .........................
455 fl oz liquid concentrate.
16 qt 9 10 11 12 14 ............
36 oz ............................
N/A ...............................
1 dozen ........................
$10.00 in cash-value
vouchers.
N/A ...............................
144 fl oz.
455 fl oz liquid concentrate.
24 qt 9 10 11 12 14.
36 oz.
1 lb.
2 dozen.
$10.00 in cash-value
vouchers.
1 lb.
N/A ...............................
1 lb or 18 oz ................
N/A ...............................
1 lb and 18 oz ..............
N/A ...............................
1 lb or 18 oz ................
30 oz.
1 lb and 18 oz.
Table 3 Footnotes: N/A = the supplemental food is not authorized in the corresponding food package.
1 Table 4 of paragraph (e)(12) of this section describes the minimum requirements and specifications for the supplemental
foods. The competent professional authority (CPA), as established by State agency policy, is authorized to determine nutritional
risk and prescribe supplemental foods per medical documentation.
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Food and Nutrition Service, USDA
§ 246.10
kpayne on DSK54DXVN1OFR with $$_JOB
2 This food package is issued to two categories of WIC participants: Women participants with singleton pregnancies and
breastfeeding women whose partially (mostly) breastfed infants receive formula from the WIC Program in amounts that do not
exceed the maximum formula allowances as appropriate for the age of the infant as described in Table 1 of paragraph (e)(9) of
this section.
3 This food package is issued to two categories of WIC participants: Non-breastfeeding postpartum women and breastfeeding
postpartum women whose breastfed infants receive more than the maximum infant formula allowances as appropriate for the
age of the infant as described in Table 1 of paragraph (e)(9) of this section.
4 This food package is issued to four categories of WIC participants: Fully breastfeeding women whose infants do not receive
formula from the WIC Program; women pregnant with two or more fetuses; women partially (mostly) breastfeeding multiple infants from the same pregnancy, and pregnant women who are also partially (mostly) breastfeeding singleton infants.
5 Women fully breastfeeding multiple infants from the same pregnancy are prescribed 1.5 times the maximum allowances.
6 Combinations of single-strength and concentrated juices may be issued provided that the total volume does not exceed the
maximum monthly allowance for single-strength juice.
7 WIC formula means infant formula, exempt infant formula, or WIC-eligible nutritionals.
8 Powder and ready-to-feed may be substituted at rates that provide comparable nutritive value.
9 Whole milk is the standard milk for issuance to 1-year-old children (12 through 23 months). Fat-reduced milks may be issued
to 1-year old children as determined appropriate by the health care provider per medical documentation. Lowfat (1%) or nonfat
milks are the standard milks for issuance for children ≥24 months of age and women. Whole milk or reduced fat (2%) milk may
be substituted for lowfat (1%) or nonfat milk for children ≥24 months of age and women as determined appropriate by the health
care provider per medical documentation.
10 Evaporated milk may be substituted at the rate of 16 fluid ounces of evaporated milk per 32 fluid ounces of fluid milk or a
1:2 fluid ounce substitution ratio. Dry milk may be substituted at an equal reconstituted rate to fluid milk.
11 For children and women, cheese may be substituted for milk at the rate of 1 pound of cheese per 3 quarts of milk. For children and women in the pregnant, partially breastfeeding and postpartum food packages, no more than 1 pound of cheese may
be substituted. For women in the fully breastfeeding food package, no more than 2 pounds of cheese may be substituted for
milk. State agencies do not have the option to issue additional amounts of cheese beyond these maximums even with medical
documentation. (No more than a total of 4 quarts of milk may be substituted for a combination of cheese, yogurt or tofu for children and women in the pregnant, partially breastfeeding and postpartum food packages. No more than a total of 6 quarts of milk
may be substituted for a combination of cheese, yogurt or tofu for women in the fully breastfeeding food package.)
12 For children and women, yogurt may be substituted for fluid milk at the rate of 1 quart of yogurt per 1 quart of milk; a maximum of 1 quart of milk can be substituted. Additional amounts of yogurt are not authorized. Whole yogurt is the standard yogurt
for issuance to 1-year-old children (12 through 23 months). Lowfat or nonfat yogurt may be issued to 1-year-old children (12
months to 23 months) as determined appropriate by the health care provider per medical documentation. Lowfat or nonfat yogurts are the standard yogurt for issuance to children ≥24 months of age and women. Whole yogurt may be substituted for lowfat
or nonfat yogurt for children ≥24 months of age and women as determined appropriate by the health care provider per medical
documentation. (No more than a total of 4 quarts of milk may be substituted for a combination of cheese, yogurt or tofu for children and women in the pregnant, partially breastfeeding and postpartum food packages. No more than a total of 6 quarts of milk
may be substituted for a combination of cheese, yogurt or tofu for women in the fully breastfeeding food package.)
13 For children, soy-based beverage and tofu may be substituted for milk as determined appropriate by the health care provider per medical documentation. Soy-based beverage may be substituted for milk on a quart for quart basis up to the total maximum allowance of milk. Tofu may be substituted for milk for children at the rate of 1 pound of tofu per 1 quart of milk. (No more
than a total of 4 quarts of milk may be substituted for a combination of cheese, yogurt or tofu for children.) Additional amounts of
tofu may be substituted, up to the maximum allowance for fluid milk for children, as determined appropriate by the health care
provider per medical documentation.
14 For women, soy-based beverage may be substituted for milk on a quart for quart basis up to the total maximum monthly allowance of milk. Tofu may be substituted for milk at the rate of 1 pound of tofu per 1 quart of milk. (No more than a total of 4
quarts of milk may be substituted for a combination of cheese, yogurt or tofu for women in the pregnant, partially breastfeeding
and postpartum food packages. No more than a total of 6 quarts of milk may be substituted for a combination of cheese, yogurt
or tofu for women in the fully breastfeeding food package.) Additional amounts of tofu may be substituted, up to the maximum allowances for fluid milk, as determined appropriate by the health care provider per medical documentation.
15 32 dry ounces of infant cereal may be substituted for 36 ounces of breakfast cereal as determined appropriate by the health
care provider per medical documentation.
16 At least one half of the total number of breakfast cereals on the State agency’s authorized food list must have whole grain
as the primary ingredient and meet labeling requirements for making a health claim as a ‘‘whole grain food with moderate fat
content’’ as defined in Table 4 of paragraph (e)(12) of this section.
17 Both fresh fruits and fresh vegetables must be authorized by State agencies. Processed fruits and vegetables, i.e., canned
(shelf-stable), frozen, and/or dried fruits and vegetables may also be authorized to offer a wider variety and choice for participants. State agencies may choose to authorize one or more of the following processed fruits and vegetables: canned fruit,
canned vegetables, frozen fruit, frozen vegetables, dried fruit, and/or dried vegetables. The cash-value voucher may be redeemed for any eligible fruit and vegetable (refer to Table 4 of paragraph (e)(12) of this section and its footnotes). Except as authorized in paragraph (b)(1)(i) of this section, State agencies may not selectively choose which fruits and vegetables are available to participants. For example, if a State agency chooses to offer dried fruits, it must authorize all WIC-eligible dried fruits.
18 Children and women whose special dietary needs require the use of pureed foods may receive commercial jarred infant
food fruits and vegetables in lieu of the cash-value voucher. Children may receive 128 oz of commercial jarred infant food fruits
and vegetables and women may receive 160 oz of commercial jarred infant food fruits and vegetables in lieu of the cash-value
voucher. Infant food fruits and vegetables may be substituted for the cash-value voucher as determined appropriate by the health
care provider per medical documentation.
19 The monthly value of the fruit/vegetable cash-value vouchers will be adjusted annually for inflation as described in
§ 246.16(j).
20 Whole wheat and/or whole grain bread must be authorized. State agencies have the option to also authorize brown rice,
bulgur, oatmeal, whole-grain barley, whole wheat macaroni products, or soft corn or whole wheat tortillas on an equal weight
basis.
21 Canned legumes may be substituted for dry legumes at the rate of 64 oz. (e.g., four 16-oz cans) of canned beans for 1
pound dry beans. In Food Packages V and VII, both beans and peanut butter must be provided. However, when individually tailoring Food Packages V or VII for nutritional reasons (e.g., food allergy, underweight, participant preference), State agencies
have the option to authorize the following substitutions: 1 pound dry and 64 oz. canned beans/peas (and no peanut butter); or 2
pounds dry or 128 oz. canned beans/peas (and no peanut butter); or 36 oz. peanut butter (and no beans).
(12) Minimum requirements and specifications for supplemental foods. Table 4
describes the minimum requirements
and specifications for supplemental
foods in all food packages:
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§ 246.10
7 CFR Ch. II (1–1–18 Edition)
TABLE 4—MINIMUM REQUIREMENTS AND SPECIFICATIONS FOR SUPPLEMENTAL FOODS
Categories/foods
WIC FORMULA:
Infant formula ..........
Exempt infant formula.
WIC-eligible
nutritionals.1.
MILK AND MILK ALTERNATIVES:
Cow’s milk 2 ................
Goat’s milk ......................
Cheese ...........................
Yogurt (cow’s milk) .........
Tofu ................................
Soy-based beverage ......
kpayne on DSK54DXVN1OFR with $$_JOB
JUICE .............................
EGGS .............................
Minimum requirements and specifications
All authorized infant formulas must:
(1) Meet the definition for an infant formula in section 201(z) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 321(z)) and meet the requirements for an infant formula under section 412 of
the Federal Food, Drug and Cosmetic Act, as amended (21 U.S.C. 350a) and the regulations at
21 CFR parts 106 and 107;
(2) Be designed for enteral digestion via an oral or tube feeding;
(3) Provide at least 10 mg iron per liter (at least 1.5 mg iron/100 kilocalories) at standard dilution;
(4) Provide at least 67 kilocalories per 100 milliliters (approximately 20 kilocalories per fluid ounce) at
standard dilution.
(5) Not require the addition of any ingredients other than water prior to being served in a liquid state.
All authorized exempt infant formula must:
(1) Meet the definition and requirements for an exempt infant formula under section 412(h) of the
Federal Food, Drug, and Cosmetic Act as amended (21 U.S.C. 350a(h)) and the regulations at 21
CFR parts 106 and 107; and
(2) Be designed for enteral digestion via an oral or tube feeding.
Certain enteral products that are specifically formulated to provide nutritional support for individuals
with a qualifying condition, when the use of conventional foods is precluded, restricted, or inadequate. Such WIC-eligible nutritionals must serve the purpose of a food, meal or diet (may be nutritionally complete or incomplete) and provide a source of calories and one or more nutrients; be
designed for enteral digestion via an oral or tube feeding; and may not be a conventional food,
drug, flavoring, or enzyme.
Must conform to FDA standard of identity for whole, reduced fat, lowfat, or nonfat milks (21 CFR
131.110). Must be pasteurized. May be flavored or unflavored. May be fluid, shelf-stable, evaporated (21 CFR 131.130), or dry.
Dry whole milk must conform to FDA standard of identity (21 CFR 131.147). Nonfat dry milk must
conform to FDA standard of identity (21 CFR 131.127).
Cultured milks must conform to FDA standard of identity for cultured milk, e.g. cultured buttermilk,
kefir cultured milk, acidophilus cultured milk (21 CFR 131.112).
Acidified milk must conform to FDA standard of identity for acidified milk, e.g., acidified kefir milk,
acidified acidophilus milk or acidified buttermilk (21 CFR 131.111).
All reduced fat, lowfat, and nonfat cow’s milk types and varieties must contain at least 400 IU of vitamin D per quart (100 IU per cup) and 2000 IU of vitamin A per quart (500 IU per cup).
Must be pasteurized. May be flavored or unflavored. May be fluid, shelf-stable, evaporated or dry
(i.e., powdered).
All reduced fat, lowfat, and nonfat goat’s milk must contain at least 400 IU of vitamin D per quart
(100 IU per cup) and 2000 IU of vitamin A per quart (500 IU per cup).
Domestic cheese made from 100 percent pasteurized milk. Must conform to FDA standard of identity
(21 CFR part 133); Monterey Jack, Colby, natural Cheddar, Swiss, Brick, Muenster, Provolone,
part-skim or whole Mozzarella, pasteurized process American, or blends of any of these cheeses
are authorized.
Cheeses that are labeled low, free, reduced, less or light in sodium, fat or cholesterol are WIC eligible.
Yogurt must be pasteurized and conform to FDA standard of identity for whole fat (21 CFR 131.200),
lowfat (21 CFR 131.203), or nonfat (21 CFR 131.206); plain or flavored with ≤40 g of total sugars
per 1 cup yogurt. Yogurts that are fortified with vitamin A and D and other nutrients may be allowed at the State agency’s option. Yogurts sold with accompanying mix-in ingredients such as
granola, candy pieces, honey, nuts and similar ingredients are not authorized. Drinkable yogurts
are not authorized.
Calcium-set tofu prepared with calcium salts (e.g., calcium sulfate). May not contain added fats, sugars, oils, or sodium. Tofu must be calcium-set, i.e., contain calcium salts, but may also contain
other coagulants, i.e., magnesium chloride.
Must be fortified to meet the following nutrient levels: 276 mg calcium per cup, 8 g protein per cup,
500 IU vitamin A per cup, 100 IU vitamin D per cup, 24 mg magnesium per cup, 222 mg phosphorus per cup, 349 mg potassium per cup, 0.44 mg riboflavin per cup, and 1.1 mcg vitamin B12
per cup, in accordance with fortification guidelines issued by FDA. May be flavored or unflavored.
Must be pasteurized 100% unsweetened fruit juice. Must contain at least 30 mg of vitamin C per 100
mL of juice. Must conform to FDA standard of identity as appropriate (21 CFR part 146) or vegetable juice must conform to FDA standard of identity as appropriate (21 CFR part 156). With the
exception of 100% citrus juices, State agencies must verify the vitamin C content of all State-approved juices. Juices that are fortified with other nutrients may be allowed at the State agency’s
option. Juice may be fresh, from concentrate, frozen, canned, or shelf-stable. Blends of authorized
juices are allowed.
Vegetable juice may be regular or lower in sodium.
Fresh shell domestic hens’ eggs or dried eggs mix (must conform to FDA standard of identity in 21
CFR 160.105) or pasteurized liquid whole eggs (must conform to FDA standard of identity in 21
CFR 160.115).
Hard boiled eggs, where readily available for purchase in small quantities, may be provided for
homeless participants.
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Food and Nutrition Service, USDA
§ 246.10
TABLE 4—MINIMUM REQUIREMENTS AND SPECIFICATIONS FOR SUPPLEMENTAL FOODS—Continued
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Categories/foods
Minimum requirements and specifications
BREAKFAST CEREAL
Must contain a minimum of 28 mg iron per 100 g dry cereal.
(READY-TO-EAT AND Must contain ≤21.2 g sucrose and other sugars per 100 g dry cereal (≤6 g per dry oz).
INSTANT AND REGAt least half of the cereals authorized on a State agency’s food list must have whole grain as the priULAR HOT CEREALS).
mary ingredient by weight AND meet labeling requirements for making a health claim as a ‘‘whole
grain food with moderate fat content’’.3
FRUITS AND VEGETAAny variety of fresh (as defined by 21 CFR 101.95) whole or cut fruit without added sugars.
BLES (FRESH AND
Any variety of fresh (as defined by 21 CFR 101.95) whole or cut vegetable, except white potatoes,
PROCESSED) 4 5 6 8 9.
without added sugars, fats, or oils (orange yams and sweet potatoes are allowed).
Any variety of canned fruits (must conform to FDA standard of identity as appropriate (21 CFR part
145)); including applesauce, juice pack or water pack without added sugars, fats, oils, or salt (i.e.,
sodium). The fruit must be listed as the first ingredient.
Any variety of frozen fruits without added sugars, fats, oils, or salt (i.e., sodium).
Any variety of canned or frozen vegetables, except white potatoes (orange yams and sweet potatoes
are allowed); without added sugars, fats, or oils. Vegetable must be listed as the first ingredient.
May be regular or lower in sodium. Must conform to FDA standard of identity as appropriate (21
CFR part 155).
Any type of dried fruits or dried vegetable, except white potatoes (orange yams and sweet potatoes
are allowed); without added sugars, fats, oils, or salt (i.e., sodium).
Any type of immature beans, peas, or lentils, fresh or in canned 5 forms.
Any type of frozen beans (immature or mature). Beans purchased with the CVV may contain added
vegetables and fruits, but may not contain added sugars, fats, oils, or meat as purchased. Canned
beans, peas, or lentils may be regular or lower in sodium content.
State agencies must allow organic forms of WIC-eligible fruits and vegetables.
WHOLE WHEAT
BREAD, WHOLE
GRAIN BREAD, AND
WHOLE GRAIN OPTIONS:
Bread ....................... Whole wheat bread must conform to FDA standard of identity (21 CFR 136.180). (Includes whole
wheat buns and rolls.) ‘‘Whole wheat flour’’ and/or ‘‘bromated whole wheat flour’’ must be the only
flours listed in the ingredient list.
OR
Whole grain bread must conform to FDA standard of identity (21 CFR 136.110) (includes whole grain
buns and rolls).
AND
Whole grain must be the primary ingredient by weight in all whole grain bread products.
AND
Must meet FDA labeling requirements for making a health claim as a ‘‘whole grain food with moderate fat content’’.3
Whole Grain Options Brown rice, bulgur, oats, and whole-grain barley without added sugars, fats, oils, or salt (i.e., sodium). May be instant-, quick-, or regular-cooking.
Soft corn or whole wheat tortillas. Soft corn tortillas made from ground masa flour (corn flour) using
traditional processing methods are WIC-eligible, e.g., whole corn, corn (masa), whole ground corn,
corn masa flour, masa harina, and white corn flour. For whole wheat tortillas, ‘‘whole wheat flour’’
must be the only flour listed in the ingredient list.
Whole wheat macaroni products. Must conform to FDA standard of identity (21 CFR 139.138) and
have no added sugars, fats, oils, or salt (i.e., sodium). ‘‘Whole wheat flour’’ and/or ‘‘whole durum
wheat flour’’ must be the only flours listed in the ingredient list. Other shapes and sizes that otherwise meet the FDA standard of identity for whole wheat macaroni (pasta) products (139.138), and
have no added sugars, fats, oils, or salt (i.e., sodium), are also authorized (e.g., whole wheat
rotini, and whole wheat penne).
FISH (CANNED) 5 .......... Canned only:
Light tuna (must conform to FDA standard of identity (21 CFR 161.190));
Salmon (Pacific salmon must conform to FDA standard of identity (21 CFR 161.170));
Sardines; and
Mackerel (N. Atlantic Scomber scombrus; Chub Pacific Scomber japonicas; Jack Mackerel 10
May be packed in water or oil. Pack may include bones or skin. Added sauces and flavorings, e.g.,
tomato sauce, mustard, lemon, are authorized at the State agency’s option. May be regular or
lower in sodium content.
MATURE LEGUMES
Any type of mature dry beans, peas, or lentils in dry-packaged or canned 5 forms. Examples include
(DRY BEANS AND
but are not limited to black beans, black-eyed peas, garbanzo beans (chickpeas), great northern
PEAS) 7.
beans, white beans (navy and pea beans), kidney beans, mature lima (‘‘butter beans’’), fava and
mung beans, pinto beans, soybeans/edamame, split peas, lentils, and refried beans. All categories
exclude soups. May not contain added sugars, fats, oils, vegetables, fruits or meat as purchased.
Canned legumes may be regular or lower in sodium content.11
Baked beans may only be provided for participants with limited cooking facilities.11
PEANUT BUTTER ......... Peanut butter and reduced fat peanut butter (must conform to FDA Standard of Identity (21 CFR
164.150)); creamy or chunky, regular or reduced fat, salted or unsalted forms are allowed. Peanut
butters with added marshmallows, honey, jelly, chocolate or similar ingredients are not authorized.
INFANT FOODS:
Infant Cereal ............ Infant cereal must contain a minimum of 45 mg of iron per 100 g of dry cereal.12
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§ 246.10
7 CFR Ch. II (1–1–18 Edition)
TABLE 4—MINIMUM REQUIREMENTS AND SPECIFICATIONS FOR SUPPLEMENTAL FOODS—Continued
Categories/foods
Infant Fruits .............
Infant Vegetables ....
Infant Meat ..............
Minimum requirements and specifications
Any variety of single ingredient commercial infant food fruit without added sugars, starches, or salt
(i.e., sodium). Texture may range from strained through diced. The fruit must be listed as the first
ingredient.13
Any variety of single ingredient commercial infant food vegetables without added sugars, starches, or
salt (i.e., sodium). Texture may range from strained through diced. The vegetable must be listed
as the first ingredient.14
Any variety of commercial infant food meat or poultry, as a single major ingredient, with added broth
or gravy. Added sugars or salt (i.e. sodium) are not allowed. Texture may range from pureed
through diced.15
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Table 4 Footnotes: FDA = Food and Drug Administration of the U.S. Department of Health and Human Services.
1 The following are not considered a WIC-eligible nutritional: Formulas used solely for the purpose of enhancing nutrient intake,
managing body weight, addressing picky eaters or used for a condition other than a qualifying condition (e.g., vitamin pills,
weight control products, etc.); medicines or drugs, as defined by the Food, Drug and Cosmetic Act (21 U.S.C. 350a) as amended; enzymes, herbs, or botanicals; oral rehydration fluids or electrolyte solutions; flavoring or thickening agents; and feeding
utensils or devices (e.g., feeding tubes, bags, pumps) designed to administer a WIC-eligible formula.
2 All authorized milks must conform to FDA standards of identity for milks as defined by 21 CFR part 131 and meet WIC’s requirements for vitamin fortification as specified in Table 4 of paragraph (e)(12) of this section. Additional authorized milks include,
but are not limited to: calcium-fortified, lactose-reduced and lactose-free, organic and UHT pasteurized milks. Other milks are
permitted at the State agency’s discretion provided that the State agency determines that the milk meets the minimum requirements for authorized milk.
3 FDA Health Claim Notification for Whole Grain Foods with Moderate Fat Content at http://www.fda.gov/food/
ingredientspackaginglabeling/labelingnutrition/ucm073634.htm
4 Processed refers to frozen, canned,5 or dried.
5 ‘‘Canned’’ refers to processed food items in cans or other shelf-stable containers, e.g., jars, pouches.
6 The following are not authorized: herbs and spices; creamed vegetables or vegetables with added sauces; mixed vegetables
containing noodles, nuts or sauce packets, vegetable-grain (pasta or rice) mixtures; fruit-nut mixtures; breaded vegetables; fruits
and vegetables for purchase on salad bars; peanuts or other nuts; ornamental and decorative fruits and vegetables such as chili
peppers on a string; garlic on a string; gourds; painted pumpkins; fruit baskets and party vegetable trays; decorative blossoms
and flowers, and foods containing fruits such as blueberry muffins and other baked goods. Home-canned and home-preserved
fruits and vegetables are not authorized.
7 Mature legumes in dry-packed or canned forms may be purchased with the WIC food instrument only. Immature varieties of
fresh or canned beans and frozen beans of any type (immature or mature) may be purchased with the cash-value voucher only.
Juices are provided as separate food WIC categories and are not authorized under the fruit and vegetable category.
8 Excludes white potatoes, mixed vegetables containing white potatoes, dried white potatoes; catsup or other condiments; pickled vegetables; olives; soups; juices; and fruit leathers and fruit roll-ups. Canned tomato sauce, tomato paste, salsa and spaghetti sauce without added sugar, fats, or oils are authorized.
9 State agencies have the option to allow only lower sodium canned vegetables for purchase with the cash-value voucher.
10 FDA defines jack mackerel as any of the following six species: Trachurus declivis, trachurus japonicas, trachurur
symmetricus, trachurus murphyi, trachurus novaezelandiae, and trachurus lathami in The Seafood List at http://www.fda.gov/
Food/GuidanceRegulation/GuidanceDocumentsRegulatoryInformation/Seafood/ucm113260.htm. King mackerel is not authorized.
11 The following are not authorized in the mature legume category: soups; immature varieties of legumes, such as those used
in canned green peas, green beans, snap beans, yellow beans, and wax beans; baked beans with meat, e.g., beans and franks;
and beans containing added sugars (with the exception of baked beans), fats, oils, meats, fruits or vegetables.
12 Infant cereals containing infant formula, milk, fruit, or other non-cereal ingredients are not allowed.
13 Mixtures with cereal or infant food desserts (e.g., peach cobbler) are not authorized; however, combinations of single ingredients (e.g., apple-banana) and combinations of single ingredients of fruits and/or vegetables (e.g., apples and squash) are allowed.
14 Combinations of single ingredients (e.g., peas and carrots) and combinations of single ingredients of fruits and/or vegetables
(e.g., apples and squash) are allowed. Mixed vegetables with white potato as an ingredient (e.g., mixed vegetables) are authorized. Infant foods containing white potatoes as the primary ingredient are not authorized.
15 No infant food combinations (e.g., meat and vegetables) or dinners (e.g., spaghetti and meatballs) are allowed.
(f) USDA purchase of commodity foods.
(1) At the request of a State agency,
FNS may purchase commodity foods
for the State agency using funds allocated to the State agency. The commodity foods purchased and made
available to the State agency must be
equivalent to the foods specified in
Table 4 of paragraph (e)(12) of this section.
(2) The State agency must:
(i) Distribute the commodity foods to
its local agencies or participants; and
(ii) Ensure satisfactory storage facilities and conditions for the commodity foods, including documentation
of proper insurance.
(g) Infant formula manufacturer registration. Infant formula manufacturers
supplying formula to the WIC Program
must be registered with the Secretary
of Health and Human Services under
the Federal Food, Drug, and Cosmetic
Act (21 U.S.C. 301 et seq.). Such manufacturers wishing to bid for a State
contract to supply infant formula to
the program must certify with the
State health department that their formulas comply with the Federal Food,
Drug, and Cosmetic Act and regulations issued pursuant to the Act.
(h) Rounding up. State agencies may
round up to the next whole container
for either infant formula or infant
foods (infant cereal, fruits, vegetables
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Food and Nutrition Service, USDA
§ 246.10
and meat). State agencies that use the
rounding up option must calculate the
amount of infant formula or infant
foods provided according to the requirements and methodology as described in this section.
(1) Infant Formula. State agencies
must use the maximum monthly allowance of reconstituted fluid ounces of
liquid concentrate infant formula as
specified in Table 1 of paragraph (e)(9)
of this section as the full nutritional
benefit (FNB) provided by infant formula for each food package category
and infant feeding option (e.g., Food
Package I A fully formula fed, IA–FF).
(i) For State agencies that use rounding up of infant formula, the FNB is determined over the timeframe (the number of months) that the participant receives the food package. In any given
month of the timeframe, the monthly
issuance of reconstituted fluid ounces
of infant formula may exceed the maximum monthly allowance or fall below
the FNB; however, the cumulative average over the timeframe may not fall
below the FNB. In addition, the State
agency must:
(A) Use the methodology described in
paragraph (h)(1)(ii) of this section for
calculating and dispersing the rounding up option;
(B) Issue infant formula in whole
containers that are all the same size;
and
(C) Disperse the number of whole
containers as evenly as possible over
the timeframe with the largest monthly issuances given in the beginning of
the timeframe.
(ii) The methodology to calculate
rounding up and dispersing infant formula to the next whole container over
the food package timeframe is as follows:
(A) Multiply the FNB amount for the
appropriate food package and feeding
option (e.g. Food Package I A fully formula fed, IA–FF) by the timeframe the
participant will receive the food package to determine the total amount of
infant formula to be provided.
(B) Divide the total amount of infant
formula to be provided by the yield of
the container (in reconstituted fluid
ounces) issued by the State agency to
determine the total number of containers to be issued during the time-
frame that the food package is prescribed.
(C) If the number of containers to be
issued does not result in a whole number of containers, the State agency
must round up to the next whole container in order to issue whole containers.
(2) Infant foods. (i) State agencies
may use the rounding up option to the
next whole container of infant food (infant cereal, fruits, vegetables and
meats) when the maximum monthly allowance cannot be issued due to varying container sizes of authorized infant
foods.
(ii) State agencies that use the
rounding up option for infant foods
must:
(A) Use the methodology described in
paragraph (h)(2)(iii) of this section for
calculating and dispersing the rounding up option;
(B) Issue infant foods in whole containers; and
(C) Disperse the number of whole
containers as evenly as possible over
the timeframe (the number of months
the participant will receive the food
package).
(iii) The methodology to round up
and disperse infant food is as follows:
(A) Multiply the maximum monthly
allowance for the infant food by the
timeframe the participant will receive
the food package to determine the
total amount of food to be provided.
(B) Divide the total amount of food
provided by the container size issued
by the State agency (e.g., ounces) to
determine the total number of food
containers to be issued during the
timeframe that the food package is
prescribed.
(C) If the number of containers to be
issued does not result in a whole number of containers, the State agency
must round up to the next whole container in order to issue whole containers.
(i) Plans for substitutions. (1) The
State agency may submit to FNS a
plan for substitution of food(s) acceptable for use in the Program to allow for
different cultural eating patterns. The
plan shall provide the State agency’s
justification, including a specific explanation of the cultural eating pattern and other information necessary
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§ 246.11
7 CFR Ch. II (1–1–18 Edition)
for FNS to evaluate the plan as specified in paragraph (i)(2) of this section.
(2) FNS will evaluate a State agency’s plan for substitution of foods for
different cultural eating patterns based
on the following criteria:
(i) Any proposed substitute food must
be nutritionally equivalent or superior
to the food it is intended to replace.
(ii) The proposed substitute food
must be widely available to participants in the areas where the substitute
is intended to be used.
(iii) The cost of the substitute food
must be equivalent to or less than the
cost of the food it is intended to replace.
(3) FNS will make a determination
on the proposed plan based on the evaluation criteria specified in paragraph
(i)(2) of this section, as appropriate.
The State agency shall substitute foods
only after receiving the written approval of FNS.
kpayne on DSK54DXVN1OFR with $$_JOB
[50 FR 6121, Feb. 13, 1985, as amended at 73
FR 11312, Mar. 3, 2008; 74 FR 48845, Sept. 25,
2009; 74 FR 69245, Dec. 31, 2009; 79 FR 12290,
Mar. 4, 2014; 79 FR 15625, Mar. 20, 2014]
§ 246.11 Nutrition education.
(a) General. (1) Nutrition education
including breastfeeding promotion and
support, shall be considered a benefit of
the Program, and shall be made available at no cost to the participant. Nutrition
education
including
breastfeeding promotion and support,
shall be designed to be easily understood by participants, and it shall bear
a practical relationship to participant
nutritional needs, household situations, and cultural preferences including information on how to select food
for themselves and their families. Nutrition
education
including
breastfeeding promotion and support,
shall be thoroughly integrated into
participant health care plans, the delivery of supplemental foods, and other
Program operations.
(2) The State agency shall ensure
that nutrition education, including
breastfeeding promotion and support,
as appropriate, is made available to all
participants. Nutrition education may
be provided through the local agencies
directly, or through arrangements
made with other agencies. At the time
of certification, the local agency shall
stress the positive, long-term benefits
of nutrition education and encourage
the participant to attend and participate in nutrition education activities.
However, individual participants shall
not be denied supplemental foods for
failure to attend or participate in nutrition education activities.
(3) As an integral part of nutrition
education, the State agency shall ensure that local agencies provide drug
and other harmful substance abuse information to all pregnant, postpartum,
and breastfeeding women and to parents or caretakers of infants and children participating in the program.
Drug and other harmful substance
abuse information may also be provided to pregnant, postpartum, and
breastfeeding women and to parents or
caretakers of infants and children participating in local agency services
other than the Program.
(b) Goals. Nutrition education including breastfeeding promotion and support, shall be designed to achieve the
following two broad goals:
(1) Emphasize the relationship between nutrition, physical activity and
health with special emphasis on the
nutritional
needs
of
pregnant,
postpartum, and breastfeeding women,
infants and children under five years of
age, and raise awareness about the dangers of using drugs and other harmful
substances during pregnancy and while
breastfeeding.
(2) Assist the individual who is at nutritional risk in improving health status and achieving a positive change in
dietary and physical activity habits,
and in the prevention of nutrition-related problems through optimal use of
the supplemental foods and other nutritious foods. This is to be taught in
the context of the ethnic, cultural and
geographic preferences of the participants and with consideration for educational and environmental limitations experienced by the participants.
(c) State agency responsibilities. The
State agency shall perform the following activities in carrying out nutrition education responsibilities, including breastfeeding promotion and support,:
(1) Develop and coordinate the nutrition education component of Program
operations with consideration of local
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Food and Nutrition Service, USDA
§ 246.11
agency plans, needs and available nutrition education resources.
(2) Provide in-service training and
technical assistance for professional
and para-professional personnel involved in providing nutrition education
to participants at local agencies. The
State agency shall also provide training on the promotion and management
of breastfeeding to staff at local agencies who will provide information and
assistance on this subject to participants.
(3) Identify or develop resources and
educational materials for use in local
agencies, including breastfeeding promotion and instruction materials, taking reasonable steps to include materials in languages other than English
in areas where a significant number or
proportion of the population needs the
information in a language other than
English, considering the size and concentration of such population and,
where possible, the reading level of
participants.
(4) Develop and implement procedures to ensure that nutrition education is offered to all adult participants and to parents and guardians of
infant or child participants, as well as
child participants, whenever possible.
(5) Monitor local agency activities to
ensure compliance with provisions set
forth in paragraphs (c)(7), (d), and (e) of
this section.
(6) Establish standards for participant contacts that ensure adequate nutrition education in accordance with
paragraph (e) of this section.
(7)
Establish
standards
for
breastfeeding promotion and support
which include, at a minimum, the following:
(i) A policy that creates a positive
clinic environment which endorses
breastfeeding as the preferred method
of infant feeding;
(ii) A requirement that each local
agency designate a staff person to coordinate breastfeeding promotion and
support activities;
(iii) A requirement that each local
agency incorporate task-appropriate
breastfeeding promotion and support
training into orientation programs for
new staff involved in direct contact
with WIC clients; and
(iv) A plan to ensure that women
have access to breastfeeding promotion
and support activities during the prenatal and postpartum periods.
(8) Determine if local agencies or
clinics can share nutrition educational
materials with institutions participating in the Child and Adult Care
Food Program established under section 17 of the Richard B. Russell National School Lunch Act (42 U.S.C.
1766) at no cost to that program, if a
written materials sharing agreement
exists between the relevant agencies.
(d) Local agency responsibilities. Local
agencies shall perform the following
activities in carrying out their nutrition education responsibilities, including breastfeeding promotion and support,:
(1) Make nutrition education, including breastfeeding promotion and support, available or enter into an agreement with another agency to make nutrition education available to all adult
participants, and to parents or caretakers of infant and child participants,
and whenever possible and appropriate,
to child participants. Nutrition education may be provided through the
use of individual or group sessions.
Educational materials designed for
Program participants may be utilized
to provide education to pregnant,
postpartum, and breastfeeding women
and to parents or caretakers of infants
and children participating in local
agency services other than the program.
(2) Develop an annual local agency
nutrition education plan, including
breastfeeding promotion and support,
consistent with the State agency’s nutrition education component of Program operations and in accordance
with this part and FNS guidelines. The
local agency shall submit its nutrition
education plan to the State agency by
a date specified by the State agency.
(e) Participant contacts. (1) The nutrition education including breastfeeding
promotion and support, contacts shall
be made available through individual
or group sessions which are appropriate
to the individual participant’s nutritional needs. All pregnant participants
shall be encouraged to breastfeed unless contraindicated for health reasons.
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§ 246.12
7 CFR Ch. II (1–1–18 Edition)
(2) During each six-month certification period, at least two nutrition
contacts shall be made available to all
adult participants and the parents or
caretakers of infant and child participants, and wherever possible, the child
participants themselves.
(3) Nutrition education contacts shall
be made available at a quarterly rate
to parents or caretakers of infant and
child participants certified for a period
in excess of six months. Nutrition education contacts shall be scheduled on a
periodic basis by the local agency, but
such contacts do not necessarily need
to take place in each quarter of the
certification period.
(4) The local agency shall document
in each participant’s certification file
that nutrition education has been
given to the participant in accordance
with State agency standards, except
that the second or any subsequent nutrition education contact during a certification period that is provided to a
participant in a group setting may be
documented in a masterfile. Should a
participant miss a nutrition education
appointment, the local agency shall,
for purposes of monitoring and further
education efforts, document this fact
in the participant’s file, or, at the local
agency’s discretion, in the case of a
second or subsequent missed contact
where the nutrition education was offered in a group setting, document this
fact in a master file.
(5) An individual care plan shall be
provided for a participant based on the
need for such plan as determined by
the competent professional authority,
except that any participant, parent, or
caretaker shall receive such plan upon
request.
(6) Contacts shall be designed to meet
different cultural and language needs
of Program participants.
[50 FR 6121, Feb. 13, 1985; 50 FR 8098, Feb. 28,
1985, as amended at 58 FR 11507, Feb. 26, 1993;
59 FR 11503, Mar. 11, 1994; 65 FR 53528, Sept.
5, 2000; 71 FR 56731, Sept. 27, 2006; 73 FR 11312,
Mar. 3, 2008; 76 FR 59889, Sept. 28, 2011]
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Subpart E—State Agency
Provisions
§ 246.12 Food delivery methods.
(a) General. This section sets forth
design and operational requirements
for food delivery systems. In recognition of emergent electronic benefit
transfer (EBT) technology, FNS may,
on a case-by-case basis, modify regulatory provisions to the extent FNS determines the particular EBT system
provides adequate safeguards that
serve the purpose of the provisions
being modified. By October 1, 2020, each
State agency shall implement EBT
statewide, unless granted an exemption
under paragraph (w)(2) of this section.
(1) Management. The State agency is
responsible for the fiscal management
of, and accountability for, food delivery systems under its jurisdiction. The
State agency may permit only authorized vendors, farmers and farmers’
markets, home food delivery contractors, and direct distribution sites to accept food instruments and cash-value
vouchers.
(2) Design. The State agency must design all food delivery systems to be
used by its local agencies.
(3) FNS oversight. FNS may, for a
stated cause and by written notice, require revision of a proposed or operating food delivery system and will
allow a reasonable time for the State
agency to effect such a revision.
(4) 2 CFR part 200, subpart D, and
USDA implementing regulations 2 CFR
part 400 and part 415. All contracts or
agreements entered into by the State
or local agency for the management or
operation of food delivery systems
must conform to the requirements of 2
CFR part 200, subpart D, and USDA implementing regulations 2 CFR part 400
and part 415.
(b) Uniform food delivery systems. The
State agency may operate up to four
types of food delivery systems under
its jurisdiction—retail, home delivery,
direct distribution, or EBT. Each system must be procedurally uniform
throughout the jurisdiction of the
State agency and must ensure adequate participant access to supplemental foods. When used, food instruments must be uniform within each
type of system.
(c) No charge for authorized supplemental foods. The State agency must
ensure that participants receive their
authorized supplemental foods free of
charge.
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Food and Nutrition Service, USDA
§ 246.12
(d) Compatibility of food delivery system. The State agency must ensure
that the food delivery system(s) selected is compatible with the delivery
of health and nutrition education, and
breastfeeding counseling services to
participants.
(e) Retail food delivery systems: General. Retail food delivery systems are
systems in which participants, parents
or caretakers of infant and child participants, and proxies obtain authorized supplemental foods by submitting
a food instrument or cash-value voucher to an authorized vendor.
(f) Retail food delivery systems: Food
instrument and cash-value voucher requirements—(1) General. State agencies
using retail food delivery systems must
use food instruments and cash-value
vouchers that comply with the requirements of paragraph (f)(2) of this section.
(2) Printed food instruments and cashvalue vouchers. Each printed food instrument and cash-value voucher must
clearly bear on its face the following
information:
(i) Authorized supplemental foods. The
supplemental foods authorized to be
obtained with the food instrument or
cash-value voucher;
(ii) First date of use. The first date on
which the food instrument or cashvalue voucher may be used to obtain
supplemental foods;
(iii) Last date of use. The last date on
which the food instrument or cashvalue vouchers may be used to obtain
authorized supplemental foods. This
date must be a minimum of 30 days
from the first date on which it may be
used or in the month of February, 28 or
29 days, except for the participant’s
first month of issuance, when it may be
the end of the month or cycle for which
the food instrument or cash-value
voucher is valid. Rather than entering
a specific last date of use on each instrument or cash-value voucher, all instruments or cash-value vouchers may
be printed with a notice that the participant must transact them within a
specified number of days after the first
date on which the food instrument or
cash-value voucher may be used;
(iv) Redemption period. The date by
which the vendor must submit the food
instrument or cash-value voucher for
redemption. This date must be no more
than 60 days from the first date on
which the food instrument or cashvalue voucher may be used. If the date
is fewer than 60 days, then the State
agency must ensure that the allotted
time provides the vendor sufficient
time to submit the food instrument or
cash-value voucher for redemption
without undue burden;
(v) Serial number. A unique and sequential serial number;
(vi) Purchase price. A space for the
purchase price to be entered. At the
discretion of the State agency, a maximum price may be printed on the food
instrument that is higher than the expected purchase price of the authorized
supplemental foods for which it will be
used, but that is low enough to protect
against potential loss of funds. When a
maximum price is printed on the food
instrument, the space for the purchase
price must be clearly distinguishable
from the maximum price. For example,
the words ‘‘purchase price’’ or ‘‘actual
amount of sale’’ could be printed larger
and in a different area of the food instrument than the maximum price; and
(vii) Signature space. A space where
participants, parents or caretakers of
infant or child participants, or proxies
must sign.
(3) Vendor identification. The State
agency must implement procedures to
ensure each food instrument and cashvalue voucher submitted for redemption can be identified by the vendor or
farmer that submitted the food instrument or cash-value voucher. Each vendor operated by a single business entity must be identified separately. The
State agency may identify vendors by
requiring that all authorized vendors
stamp their names and/or enter a vendor identification number on all food
instruments or cash-value vouchers
prior to submitting them for redemption.
(4) Split tender transactions. The State
agency must implement procedures
that allow the participant, authorized
representative or proxy to pay the difference when a fruit and vegetable purchase exceeds the value of the cashvalue vouchers.
(g) Retail food delivery systems: Vendor
authorization—(1) General. The State
agency must authorize an appropriate
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§ 246.12
7 CFR Ch. II (1–1–18 Edition)
number and distribution of vendors in
order to ensure the lowest practicable
food prices consistent with adequate
participant access to supplemental
foods and to ensure effective State
agency management, oversight, and review of its authorized vendors.
(2) Vendor limiting criteria. The State
agency may establish criteria to limit
the number of stores it authorizes. The
State agency must apply its limiting
criteria consistently throughout its jurisdiction. Any vendor limiting criteria
used by the State agency must be included in the State Plan in accordance
with § 246.4(a)(14)(ii).
(3) Vendor selection criteria. The State
agency must develop and implement
criteria to select stores for authorization. The State agency must apply its
selection criteria consistently throughout its jurisdiction. The State agency
may reassess any authorized vendor at
any time during the vendor’s agreement period using the vendor selection
criteria in effect at the time of the reassessment and must terminate the
agreements with those vendors that
fail to meet them. The vendor selection
criteria must include the following categories and requirements and must be
included in the State Plan in accordance with § 246.4(a)(14)(ii).
(i) Minimum variety and quantity of
supplemental foods. The State agency
must establish minimum requirements
for the variety and quantity of supplemental foods that a vendor applicant
must stock to be authorized. These requirements include that the vendor
stock at least two different fruits, two
different vegetables, and at least one
whole grain cereal authorized by the
State agency. The State agency may
not authorize a vendor applicant unless
it determines that the vendor applicant
meets these minimums. The State
agency may establish different minimums for different vendor peer groups.
The State agency may not authorize a
vendor applicant unless it determines
that the vendor applicant obtains infant formula only from sources included on the State agency’s list described in paragraph (g)(11) of this section.
(ii) Business integrity. The State agency must consider the business integrity
of a vendor applicant. In determining
the business integrity of a vendor applicant, the State agency may rely
solely on facts already known to it and
representations made by the vendor applicant on its vendor application. The
State agency is not required to establish a formal system of background
checks for vendor applicants. Unless
denying authorization of a vendor applicant would result in inadequate participant access, the State agency may
not authorize a vendor applicant if during the last six years the vendor applicant or any of the vendor 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. The State agency may add
other types of convictions or civil judgments to this list.
(iii) Current SNAP disqualification or
civil money penalty for hardship. Unless
denying authorization of a vendor applicant would result in inadequate participant access, the State agency may
not authorize a vendor applicant that
is currently disqualified from SNAP or
that has been assessed a SNAP civil
money penalty for hardship and the
disqualification period that would otherwise have been imposed has not expired.
(iv) Provision of incentive items. The
State agency may not authorize or
continue the authorization of an above50-percent vendor, or make payments
to an above-50-percent vendor, which
provides or indicates an intention to
provide prohibited incentive items to
customers. Evidence of such intent includes, but is not necessarily limited
to, advertising the availability of prohibited incentive items.
(A) The State agency may approve
any of the following incentive items to
be provided by above-50-percent vendors to customers, at the discretion of
the State agency:
(1) Food, merchandise, or services obtained at no cost to the vendor, subject
to documentation;
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Food and Nutrition Service, USDA
§ 246.12
(2) Food, merchandise, or services of
nominal value, i.e., having a per item
cost of less than $2, subject to documentation;
(3) Food sales and specials which involve no cost or less than $2 in cost to
the vendor for the food items involved,
subject to documentation, and do not
result in a charge to a WIC food instrument for foods in excess of the foods
listed on the food instrument;
(4) Minimal customary courtesies of
the retail food trade, such as helping
the customer to obtain an item from a
shelf or from behind a counter, bagging
food for the customer, and assisting
the customer with loading the food
into a vehicle.
(B) The following incentive items are
prohibited for above-50-percent vendors
to provide to customers:
(1) Services which result in a conflict
of interest or the appearance of such
conflict for the above-50-percent vendor, such as assistance with applying
for WIC benefits;
(2) Lottery tickets provided to customers at no charge or below face
value;
(3) Cash gifts in any amount for any
reason;
(4) Anything made available in a public area as a complimentary gift which
may be consumed or taken without
charge;
(5) An allowable incentive item provided more than once per customer per
shopping visit, regardless of the number of customers or food instruments
involved, unless the incentive items
had been obtained by the vendor at no
cost or the total value of multiple incentive items provided during one
shopping visit would not exceed the
less-than-$2 nominal value limit;
(6) Food, merchandise or services of
greater than nominal value provided to
the customer;
(7) Food, merchandise sold to customers below cost, or services purchased by customers below fair market
value;
(8) Any kind of incentive item which
incurs a liability for the WIC Program;
(9) Any kind of incentive item which
violates any Federal, State, or local
law or regulations.
(C) For-profit goods or services offered by the above-50-percent vendor to
WIC participants at a fair market
value based on comparable for-profit
goods or services of other businesses
are not incentive items subject to approval or prohibition, except that such
goods or services must not constitute a
conflict of interest or result in a liability for the WIC Program.
(4) Vendor selection criteria: competitive
price. The State agency must establish
a vendor peer group system and distinct competitive price criteria and allowable reimbursement levels for each
peer group. The State agency must use
the competitive price criteria to evaluate the prices a vendor applicant
charges for supplemental foods as compared to the prices charged by other
vendor applicants and authorized vendors, and must authorize vendors selected from among those that offer the
program the most competitive prices.
The State agency must consider a vendor applicant’s shelf prices or the
prices it bids for supplemental foods,
which may not exceed its shelf prices.
In establishing competitive price criteria and allowable reimbursement levels, the State agency must consider
participant access by geographic area.
The State agency must inform all vendors of the criteria for peer groups, and
must inform each individual vendor of
its peer group assignment.
(i) Vendors that meet the above-50-percent criterion. Vendors that derive more
than 50 percent of their annual food
sales revenue from WIC food instruments, and new vendor applicants expected to meet this criterion under
guidelines approved by FNS, are defined as above-50-percent vendors. Each
State agency annually must implement
procedures approved by FNS to identify authorized vendors and vendor applicants as either above-50-percent vendors or regular vendors, in accordance
with
paragraphs
(g)(4)(i)(E)
and
(g)(4)(i)(F) of this section. The State
agency must receive FNS certification
of its vendor cost containment system
under section 246.12(g)(4)(vi) prior to
authorizing any above-50-percent vendors. The State agency that chooses to
authorize any above-50-percent vendors:
(A) Must distinguish these vendors
from other authorized vendors in its
peer group system or its alternative
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§ 246.12
7 CFR Ch. II (1–1–18 Edition)
cost containment system approved by
FNS by establishing separate peer
groups for above-50-percent vendors or
by placing above-50-percent vendors in
peer groups with other vendors and establishing distinct competitive price
selection criteria and allowable reimbursement levels for the above-50-percent vendors;
(B) Must reassess the status of new
vendors within six months after authorization to determine whether or
not the vendors are above-50-percent
vendors, and must take necessary follow-up action, such as terminating
vendor agreements or reassigning vendors to the appropriate peer group;
(C) Must compare above-50-percent
vendors’ prices against the prices of
vendors that do not meet the above-50percent
criterion
in
determining
whether the above-50-percent vendors
have competitive prices and in establishing allowable reimbursement levels
for such vendors; and
(D) Must ensure that the prices of
above-50-percent vendors do not inflate
the competitive price criteria and allowable reimbursement levels for the
peer groups or result in higher total
food costs if program participants
transact their food instruments at
above-50-percent vendors rather than
at other vendors that do not meet the
above-50-percent criterion. To comply
with this requirement, the State agency must compare the average cost of
each type of food instrument redeemed
by above-50-percent vendors against
the average cost of the same type of
food instrument redeemed by regular
vendors. The average cost per food instrument may be weighted to reflect
the relative proportion of food instruments redeemed by each category of
vendors in the peer group system. The
State agency must compute statewide
average costs per food instrument at
least quarterly to monitor compliance
with this requirement. If average payments per food instrument for above50-percent vendors exceed average payments per food instrument to regular
vendors, then the State agency must
take necessary action to ensure compliance, such as adjusting payment levels. Where EBT systems are in use, it
may be more appropriate to compare
prices of individual WIC food items to
ensure that average payments to
above-50-percent vendors do not exceed
average payments for the same food
item to comparable vendors. If FNS determines that a State agency has failed
to ensure that above-50-percent vendors do not result in higher costs to the
program than if participants transact
their food instruments at regular vendors, FNS will establish a claim
against the State agency to recover excess food funds expended and will require remedial action. A State agency
may exclude partially-redeemed food
instruments from a quarterly cost neutrality assessment based on an empirical methodology approved by FNS. A
State agency may not exclude food instruments from the quarterly cost neutrality assessment based on a rate of
partially-redeemed food instruments.
(E) Must determine whether vendor
applicants are expected to be above-50percent vendors. The State agency
must ask vendor applicants whether
they expect to derive more than 50 percent of their annual revenue from the
sale of food items from transactions involving WIC food instruments. This
question applies whether or not the
State agency chooses to authorize
above-50-percent vendors. A vendor
who answers in the affirmative must be
treated as an above-50-percent vendor.
The State agency must further assess a
vendor who answers in the negative, by
first calculating WIC redemptions as a
percent of total food sales in existing
WIC-authorized stores owned by the
vendor applicant. Second, the State
agency must calculate or request from
the vendor applicant the percentage of
anticipated food sales by type of payment, i.e., cash, Supplemental Nutrition Assistance Program, WIC, and
credit/debit card. Third, the State
agency must review either the inventory invoices for food items, or the actual food items present at the
preauthorization visit required by
paragraph (g)(5) of this section, or
both. Fourth, the State agency must
determine whether WIC authorization
is required in order for the store to
open for business. If the vendor would
be expected to be an above-50-percent
vendor under any of these criteria,
then the vendor must be treated as an
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Food and Nutrition Service, USDA
§ 246.12
above-50-percent vendor. State agencies may use additional data sources
and methodologies, if approved by
FNS.
(F) Must determine whether a currently authorized vendor meets the
above-50-percent criterion, based on
the State agency’s calculation of WIC
redemptions as a percent of the vendor’s total foods sales for the same period. If WIC redemptions are more than
50 percent of the total food sales, the
vendor must be deemed to be an above50-percent vendor. As an initial step in
identifying above-50-percent vendors,
the State agency may compare each
vendor’s WIC redemptions to Supplemental Nutrition Assistance Program
redemptions for the same period. If
more than one WIC State agency authorizes a particular vendor, then each
State agency must obtain and add the
WIC redemptions for each State agency
that authorizes the vendor to derive
the total WIC redemptions. If Supplemental Nutrition Assistance Program
redemptions exceed WIC redemptions,
no further assessment is required since
the vendor would not be an above-50percent vendor. For vendors whose WIC
redemptions exceed their Supplemental
Nutrition Assistance Program redemptions, or if this comparison of redemptions was not made, the State agency
must obtain from these vendors a
statement of the total amount of revenue derived from the sale of foods that
could be purchased using Supplemental
Nutrition Assistance Program benefits.
The State agency must also obtain
from these vendors documentation
(such as tax documents or other
verifiable documentation) to support
the amount of food sales claimed by
the vendor. After evaluating the documentation received from the vendor,
the State agency must calculate WIC
redemptions as a percent of total food
sales and classify the vendor as meeting or not meeting the above-50- percent criterion. State agencies may use
additional methods, if approved by
FNS.
(ii) Implementing effective peer groups.
The State agency’s methodology for establishing a vendor peer group system
must include the following:
(A) At least two criteria for establishing peer groups, one of which must
be a measure of geography, such as
metropolitan or other statistical areas
that form distinct labor and products
markets, unless the State agency receives FNS approval to use a single criterion;
(B) Routine collection of vendor shelf
prices at least every six months following authorization to monitor vendor
compliance
with
paragraphs
(g)(4)(i)(C), (g)(4)(ii)(C), and (g)(4)(iii) of
this section and to ensure State agency
policies and procedures dependent on
shelf price data are efficient and effective. FNS may grant an exemption
from this shelf price collection requirement if the State agency demonstrates
to FNSs’ satisfaction that an alternative methodology for monitoring
vendor compliance with paragraphs
(g)(4)(i)(C), (g)(4)(ii)(C), and (g)(4)(iii) of
this section is efficient and effective
and other State agency policies and
procedures are not dependent on frequent collection of shelf price data.
Such exemption would remain in effect
until the State agency no longer meets
the conditions on which the exemption
was based, until FNS revokes the exemption, or for three years, whichever
occurs first;
(C) Assessment of the effectiveness of
the peer groupings and competitive
price criteria at least every three years
and modification, as necessary, to enhance system performance. The State
agency may change a vendor’s peer
group whenever the State agency determines that placement in an alternate peer group is warranted.
(iii) Subsequent price increases. The
State agency must establish procedures to ensure that a vendor selected
for participation in the program does
not, subsequent to selection, increase
prices to levels that would make the
vendor ineligible for authorization.
(iv) Exceptions to competitive price criteria. The State agency may except
from the competitive price criteria and
allowable reimbursement levels pharmacy vendors that supply only exempt
infant formula and/or WIC-eligible
nutritionals, and non-profit vendors for
which more than 50 percent of their annual revenue from food sales consists
of revenue derived from WIC food instruments. A State agency that elects
to exempt non-profit vendors from
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§ 246.12
7 CFR Ch. II (1–1–18 Edition)
competitive price criteria and/or allowable reimbursements levels must notify FNS, in writing, at least 30 days
prior to the effective date of the exemption. The State agency’s notification must indicate the reason for the
exemption, including whether the vendor is needed to ensure participant access, why other vendors that are subject to competitive price criteria and
allowable reimbursement levels cannot
provide the required supplemental
foods, the benefits to the program of
exempting the non-profit vendor from
the competitive price criteria and/or
allowable reimbursement levels, the
criteria the State agency used to assess
the competitiveness of the non-profit
vendor’s prices, and how the State
agency will determine the reimbursement level for the non-profit vendor.
This notification requirement does not
apply to State agency contracts and
agreements with non-profit health and/
or human service agencies or organizations.
(v) Exemptions from the vendor peer
group system requirement. With prior
written approval from FNS, a State
agency may use a vendor cost containment approach other than a peer group
system if it meets certain conditions.
A State agency that obtains an exemption from the peer group requirement
still must establish competitive pricing criteria for vendor selection and allowable reimbursement levels. An exemption from the peer group requirement would remain in effect until the
State agency no longer meets the conditions on which the exemption was
based, until FNS revokes the exemption, or for three years, whichever occurs first. During the period of the exemption, the State agency must provide annually to FNS documentation
that it either authorizes no above-50percent vendors, or that such vendors’
redemptions continue to represent less
than five percent of total WIC redemptions, depending on the terms of the
exemption. The conditions for obtaining an exemption from the vendor peer
group system are as follows:
(A) The State agency chooses not to
authorize any vendors that derive more
than 50 percent of their revenue from
food sales from WIC food instruments,
and the State agency demonstrates to
FNS that establishing a vendor peer
group system would be inconsistent
with efficient and effective operation
of the program, or that its alternative
cost containment system would be as
effective as a peer group system; or
(B) The State agency determines that
food instruments redeemed by vendors
that meet the above-50-percent criterion comprise less than five percent
of the total WIC redemptions in the
State in the fiscal year prior to a fiscal
year in which the exemption is effective; and the State agency demonstrates to FNS that its alternative
vendor cost containment system would
be as effective as a vendor peer group
system and would not result in higher
costs if program participants redeem
food instruments at vendors that meet
the above-50-percent criterion rather
than at vendors that do not meet this
criterion.
(vi) Cost containment certification. If a
State agency elects to authorize any
above-50-percent vendors, the State
agency must submit information, in
accordance with guidance provided by
FNS, to demonstrate that its competitive price criteria and allowable reimbursement levels do not result in average payments per food instrument to
these vendors that are higher than average payments per food instrument to
comparable vendors that are not above50-percent vendors. To calculate average payments per food instrument, the
State agency must include either all
food instruments redeemed by all authorized vendors or a representative
sample of the redeemed food instruments. The State agency must add the
redemption amounts for all redeemed
food instruments of the same type and
divide the sum by the number of food
instruments of that type. If the State
agency does not designate food instruments by type, it must calculate the
average payment for each distinct
combination of foods prescribed on the
food instrument. The State agency
may calculate average payments per
food instrument type for groups of vendors that meet the above-50-percent
criterion and comparable vendors, or
the State agency may calculate average payments for each food instrument
type for each vendor. State agencies
with EBT systems must compare the
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Food and Nutrition Service, USDA
§ 246.12
average cost of each WIC food purchased by participants at above-50-percent vendors with the average cost of
each food purchased from comparable
vendors. If FNS determines, based on
its review of the information provided
by the State agency and any other relevant data, that the requirements in
this paragraph have been met, FNS
will certify that the State agency’s
competitive price criteria and allowable reimbursement levels established
for above-50-percent vendors do not result in higher average payments per
food instrument (or higher costs for
each WIC food item in EBT systems). If
the State agency’s methodology for establishing competitive price criteria
and allowable reimbursement levels
fails to meet the requirement of this
section regarding average food instrument payments to above-50-percent
vendors, FNS will disapprove the State
agency’s request to authorize above-50percent vendors. At least every three
years following initial certification,
the State agency must submit information which demonstrates that it continues to meet the requirements of this
section relative to average payments
to above-50-percent vendors. FNS may
require annual updates of selected food
instrument redemption data.
(vii) Limitation on private rights of action. The competitive pricing provisions of this paragraph do not create a
private right of action.
(5) On-site preauthorization visit. The
State agency must conduct an on-site
visit prior to or at the time of a vendor’s initial authorization.
(6) Sale of store to circumvent WIC
sanction. The State agency may not authorize a vendor applicant if the State
agency determines the store has been
sold by its previous owner in an attempt to circumvent a WIC sanction.
The State agency may consider such
factors as whether the store was sold to
a relative by blood or marriage of the
previous owner(s) or sold to any individual or organization for less than its
fair market value.
(7) Impact on small businesses. The
State agency is encouraged to consider
the impact of authorization decisions
on small businesses.
(8) Application periods. The State
agency may limit the periods during
which applications for vendor authorization will be accepted and processed,
except that applications must be accepted and processed at least once
every three years. The State agency
must develop procedures for processing
vendor applications outside of its timeframes when it determines there will
be inadequate participant access unless
additional vendors are authorized.
(9) Data collection at authorization. At
the time of application, the State
agency must collect the vendor applicant’s SNAP authorization number if
the vendor applicant is authorized in
that program. In addition, the State
agency must collect the vendor applicant’s current shelf prices for supplemental foods.
(10) List of infant formula wholesalers,
distributors, and retailers licensed under
State law or regulations, and infant formula manufacturers registered with the
Food and Drug Administration (FDA).
The State agency must provide a list in
writing or by other effective means to
all authorized WIC retail vendors of the
names and addresses of infant formula
wholesalers, distributors, and retailers
licensed in the State in accordance
with State law (including regulations),
and infant formula manufacturers registered with the Food and Drug Administration (FDA) that provide infant formula, on at least an annual basis.
(i) Notification to vendors. The State
agency is required to notify vendors
that they must purchase infant formula only from a source included on
the State agency’s list, or from a
source on another State agency’s list if
the vendor’s State agency permits this,
and must only provide such infant formula to participants in exchange for
food instruments specifying infant formula. For the purposes of paragraph
(g)(11) of this section, ‘‘infant formula’’
means Infant formula, Contract brand infant formula and Non-contract brand infant formula as defined in § 246.2, and infant formula covered by a waiver
granted under § 246.16a(e).
(ii) Type of license. If more than one
type of license applies, the State agency may choose which one to use.
(iii) Exclusions from list. The State
agency may not exclude a State-licensed entity from the list except
when:
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(A) Specifically required or authorized by State law or regulations; or
(B) The entity does not carry infant
formula.
(h) Retail food delivery systems: Vendor
agreements—(1) General—(i) Entering
into agreements. The State agency must
enter into written agreements with all
authorized vendors. The agreements
must be for a period not to exceed
three years. The agreement must be
signed by a representative who has
legal authority to obligate the vendor
and a representative of the State agency. When the vendor representative is
obligating more than one vendor, the
agreement must specify all vendors
covered by the agreement. When more
than one vendor is specified in the
agreement, the State agency may add
or delete an individual vendor without
affecting the remaining vendors. The
State agency must require vendors to
reapply at the expiration of their
agreements and must provide vendors
with not less than 15 days advance
written notice of the expiration of
their agreements.
(ii) Delegation to local agencies. The
State agency may delegate to its local
agencies the authority to sign vendor
agreements if the State agency indicates its intention to do so in its State
Plan
in
accordance
with
§ 246.4(a)(14)(iii). In such cases, the
State agency must provide supervision
and instruction to ensure the uniformity and quality of local agency activities.
(2) Standard vendor agreement. The
State agency must use a standard vendor agreement throughout its jurisdiction, although the State agency may
make exceptions to meet unique circumstances provided that it documents
the reasons for such exceptions.
(3) Vendor agreement provisions. The
vendor agreement must contain the
following specifications, although the
State agency may determine the exact
wording to be used:
(i) Acceptance of food instruments and
cash value vouchers. The vendor may
accept food instruments and cash-value
vouchers only from participants, parents or caretakers of infant and child
participants, or proxies.
(ii) No substitutions, cash, credit, refunds, or exchanges. The vendor may
provide only the authorized supplemental foods listed on the food instrument and cash-value voucher.
(A) The vendor may not provide unauthorized food items, nonfood items,
cash, or credit (including rain checks)
in exchange for food instruments or
cash-value vouchers. The vendor may
not provide refunds or permit exchanges for authorized supplemental
foods obtained with food instruments
or cash-value vouchers, except for exchanges of an identical authorized supplemental food item when the original
authorized supplemental 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.
(B) The vendor may provide only the
authorized infant formula which the
vendor has obtained from sources included on the list described in paragraph (g)(11) of this section to participants in exchange for food instruments
specifying infant formula.
(iii) Treatment of participants, parents/
caretakers, and proxies. The vendor
must offer program participants, parents or caretakers of infant of child
participants, and proxies the same
courtesies offered to other customers.
(iv) Time periods for transacting food
instruments and cash-value vouchers.
The vendor may accept a food instrument or cash-value voucher only within the specified time period.
(v) Purchase price on food instruments
and cash-value vouchers. The vendor
must ensure that the purchase price is
entered on food instruments and cashvalue vouchers in accordance with the
procedures described in the vendor
agreement. The State agency has the
discretion to determine whether the
vendor or the participant enters the
purchase price. The purchase price
must include only the authorized supplemental food items actually provided
and must be entered on the food instrument or cash-value voucher before it is
signed.
(vi) Signature on food instruments and
cash-value vouchers. For printed food
instruments and cash-value vouchers,
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the vendor must ensure the participant, parent or caretaker of an infant
or child participant, or proxy signs the
food instrument or cash-value voucher
in the presence of the cashier. In EBT
systems, a Personal Identification
Number (PIN) may be used in lieu of a
signature.
(vii) Sales tax prohibition. The vendor
may not collect sales tax on authorized
supplemental foods obtained with food
instruments, or cash-value vouchers.
(viii) Food instrument and cash-value
voucher redemption. The vendor must
submit food instruments and cashvalue vouchers for redemption in accordance with the redemption procedures described in the vendor agreement. The vendor may redeem a food
instrument or cash-value voucher only
within the specified time period. As
part of the redemption procedures, the
State agency may make price adjustments to the purchase price on food instruments submitted by the vendor for
redemption to ensure compliance with
the price limitations applicable to the
vendor. As part of the redemption procedures, the State agency must establish and apply limits on the amount of
reimbursement allowed for food instruments based on a vendor’s peer group
and competitive price criteria. In setting allowable reimbursement levels,
the State agency must consider participant access in a geographic area and
may include a factor to reflect fluctuations in wholesale prices. In establishing allowable reimbursement levels
for above-50-percent vendors the State
agency must ensure that reimbursements do not result in higher food
costs than if participants transacted
their food instruments at vendors that
are not above-50-percent vendors, or in
higher average payments per food instrument to above-50-percent vendors
than average payments to comparable
vendors. The State agency may make
price adjustments to the purchase price
on food instruments submitted by the
vendor for redemption to ensure compliance with the allowable reimbursement level applicable to the vendor. A
vendor’s failure to remain price competitive is cause for termination of the
vendor agreement, even if actual payments to the vendor are within the
maximum reimbursement amount. The
State agency may exempt vendors that
supply only exempt infant formula and/
or WIC-eligible nutritionals and nonprofit above-50-percent vendors from
the allowable reimbursement limits.
(ix) Vendor claims. When the State
agency determines the vendor has committed a vendor violation that affects
the payment to the vendor, the State
agency will delay payment or establish
a claim. The State agency may delay
payment or establish a claim in the
amount of the full purchase price of
each food instrument or cash-value
voucher that contained the vendor
overcharge or other error. The State
agency will provide the vendor with an
opportunity to justify or correct a vendor overcharge or other error. The vendor must pay any claim assessed by the
State agency. In collecting a claim, the
State agency may offset the claim
against
current
and
subsequent
amounts to be paid to the vendor. In
addition to denying payment or assessing a claim, the State agency may
sanction the vendor for vendor overcharges or other errors in accordance
with the State agency’s sanction
schedule.
(x) No charge for authorized supplemental foods or restitution from participants. The vendor may not charge participants, parents or caretakers of infant and child participants, or proxies
for authorized supplemental foods obtained with food instruments or cashvalue vouchers. In addition, the vendor
may not seek restitution from these individuals for food instruments or cashvalue vouchers not paid or partially
paid by the State agency.
(xi) Split tender for cash-value vouchers. The vendor must allow the participant, authorized representative or
proxy to pay the difference when a
fruit and vegetable purchase exceeds
the value of the cash-value vouchers
(also known as a split tender transaction).
(xii) Training. At least one representative of the vendor must participate in
training annually. Annual vendor
training may be provided by the State
agency in a variety of formats, including newsletters, videos, and interactive
training. The State agency will have
sole discretion to designate the date,
time, and location of all interactive
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training, except that the State agency
will provide the vendor with at least
one alternative date on which to attend such training.
(xiii) Vendor training of staff. The vendor must inform and train cashiers and
other staff on program requirements.
(xiv) Accountability for owners, officers, managers, and employees. The vendor is accountable for its owners, officers, managers, agents, and employees
who commit vendor violations.
(xv) Monitoring. The vendor may be
monitored for compliance with program requirements.
(xvi) Recordkeeping. The vendor must
maintain inventory records used for
Federal tax reporting purposes and
other records the State agency may require for the period of time specified by
the State agency in the vendor agreement. Upon request, the vendor must
make available to representatives of
the State agency, the Department, and
the Comptroller General of the United
States, at any reasonable time and
place for inspection and audit, all food
instruments and cash-value vouchers
in the vendor’s possession and all program-related records.
(xvii) Termination. The State agency
will immediately terminate the agreement if it determines that the vendor
has provided false information in connection with its application for authorization. Either the State agency or the
vendor may terminate the agreement
for cause after providing advance written notice of a period of not less than
15 days to be specified by the State
agency.
(xviii) Change in ownership or location
or cessation of operations. The vendor
must provide the State agency advance
written notification of any change in
vendor ownership, store location, or
cessation of operations. In such instances, the State agency will terminate the vendor agreement, except that
the State agency may permit vendors
to move short distances without terminating the agreement. The State agency has the discretion to determine the
length of advance notice required for
vendors reporting changes under this
provision, whether a change in location
qualifies as a short distance, and
whether a change in business structure
constitutes a change in ownership.
(xix) Sanctions. In addition to claims
collection, the vendor may be sanctioned for vendor violations in accordance with the State agency’s sanction
schedule. Sanctions may include administrative fines, disqualification,
and civil money penalties in lieu of disqualification. The State agency must
notify a vendor in writing when an investigation reveals an initial incidence
of a violation for which a pattern of
incidences must be established in order
to impose a sanction, before another
such incidence is documented, unless
the State agency determines, in its discretion, on a case-by-case basis, that
notifying the vendor would compromise an investigation.
(xx) Conflict of interest. The State
agency will terminate the agreement if
the State agency identifies a conflict
of interest, as defined by applicable
State laws, regulations, and policies,
between the vendor and the State agency or its local agencies.
(xxi) Criminal penalties. A vendor who
commits fraud or abuse in the Program
is liable to prosecution under applicable Federal, State or local laws. Those
who have willfully misapplied, stolen
or fraudulently obtained program funds
will be subject to a fine of not more
than $25,000 or imprisonment for not
more than five years or both, if the
value of the funds is $100 or more. If
the value is less than $100, the penalties are a fine of not more than $1,000
or imprisonment for not more than one
year or both.
(xxii) Not a license/property interest.
The vendor agreement does not constitute a license or a property interest.
If the vendor wishes to continue to be
authorized beyond the period of its current agreement, the vendor must reapply for authorization. If a vendor is
disqualified, the State agency will terminate the vendor’s agreement, and
the vendor will have to reapply in
order to be authorized after the disqualification period is over. In all
cases, the vendor’s new application will
be subject to the State agency’s vendor
selection criteria and any vendor limiting criteria in effect at the time of
the reapplication.
(xxiii) Compliance with vendor agreement, statutes, regulations, policies, and
procedures. The vendor must comply
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§ 246.12
with the vendor agreement and Federal
and State statutes, regulations, policies, and procedures governing the Program, including any changes made during the agreement period.
(xxiv) Nondiscrimination regulations.
The vendor must comply with the nondiscrimination provisions of Departmental regulations (parts 15, 15a and
15b of this title).
(xxv) Compliance with vendor selection
criteria. The vendor must comply with
the vendor selection criteria throughout the agreement period, including
any changes to the criteria. Using the
current vendor selection criteria, the
State agency may reassess the vendor
at any time during the agreement period. The State agency will terminate
the vendor agreement if the vendor
fails to meet the current vendor selection criteria.
(xxvi) Reciprocal SNAP disqualification
for WIC Program disqualifications. Disqualification from the WIC Program
may result in disqualification as a retailer in SNAP. Such disqualification
may not be subject to administrative
or judicial review under SNAP.
(xxvii) EBT minimum lane coverage.
Point of Sale (POS) terminals used to
support the WIC Program shall be deployed in accordance with the minimum lane coverage provisions of
§ 246.12(z)(2). The State agency may remove excess terminals if actual redemption activity warrants a reduction
consistent with the redemption levels
outlined in § 246.12(z)(2)(i) and (z)(2)(ii).
(xxviii) EBT third-party processing
costs and fees. The vendor shall not
charge to the State agency any thirdparty commercial processing costs and
fees incurred by the vendor from EBT
multi-function equipment. Commercial
transaction processing costs and fees
imposed by a third-party processor
that the vendor elects to use to connect to the EBT system of the State
shall be borne by the vendor.
(xxix) EBT interchange fees. The State
agency shall not pay or reimburse the
vendor for interchange fees related to
WIC EBT transactions.
(xxx) EBT ongoing maintenance and
operational costs. The State agency
shall not pay for ongoing maintenance,
processing fees or operational costs for
vendor systems and equipment used to
support WIC EBT after the State agency has implemented WIC EBT statewide, unless the equipment is used
solely for the WIC Program or the
State agency determines the vendor
using multi-function equipment is necessary for participant access. This provision also applies to authorized farmers and farmers’ markets. Costs shared
by a WIC State agency will be proportional to the usage for the WIC Program.
(xxxi) Compliance with EBT operating
rules, standards and technical requirements. The vendor must comply with
the Operating rules, standards and
technical requirements established by
the State agency.
(4) Purchase price and redemption procedures. The State agency must describe in the vendor agreement its purchase price and redemption procedures.
The redemption procedures must ensure that the State agency does not
pay a vendor more than the price limitations applicable to the vendor.
(5) Sanction schedule. The State agency must include its sanction schedule
in the vendor agreement or as an attachment to it. The sanction schedule
must include all mandatory and State
agency vendor sanctions and must be
consistent with paragraph (l) of this
section. If the sanction schedule is in
State law or regulations or in a document provided to the vendor at the
time of authorization, the State agency instead may include an appropriate
cross-reference in the vendor agreement.
(6) Actions subject to administrative review and review procedures. The State
agency must include the adverse actions a vendor may appeal and those
adverse actions that are not subject to
administrative review. The State agency also must include a copy of the
State agency’s administrative review
procedures in the vendor agreement or
as an attachment to it or must include
a statement that the review procedures
are available upon request and the applicable review procedures will be provided along with an adverse action subject to administrative review. These
items must be consistent with § 246.18.
If these items are in State law or regulations or in a document provided to
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the vendor at the time of authorization, the State agency instead may include an appropriate cross-reference in
the vendor agreement.
(7) Notification of program changes.
The State agency must notify vendors
of changes to Federal or State statutes, regulations, policies, or procedures governing the Program before
the changes are implemented. The
State agency should give as much advance notice as possible.
(8) Allowable and prohibited incentive
items for above-50-percent vendors. The
vendor agreement for an above-50-percent vendor, or another document provided to the vendor and cross-referenced in the agreement, must include
the State agency’s policies and procedures for allowing and prohibiting incentive items to be provided by an
above-50-percent vendor to customers,
consistent with paragraph (g)(3)(iv) of
this section.
(i) The State agency must provide
written approval or disapproval (including by electronic means such as
electronic mail or facsimile) of requests from above-50-percent vendors
for permission to provide allowable incentive items to customers;
(ii) The State agency must maintain
documentation for the approval process, including invoices or similar documents showing that the cost of each
item is either less than the $2 nominal
value limit, or obtained at no cost, unless the State agency provides the vendor with a list of pre-approved incentive items at the time of authorization;
and
(iii) The State agency must define
prohibited incentive items.
(i) Retail food delivery systems: Vendor
training—(1) General requirements. The
State agency must provide training annually to at least one representative of
each vendor. Prior to or at the time of
a vendor’s initial authorization, and at
least once every three years thereafter,
the training must be in an interactive
format that includes a contemporaneous opportunity for questions and
answers. The State agency must designate the date, time, and location of
the interactive training and the audience (e.g., managers, cashiers, etc.) to
which the training is directed. The
State agency must provide vendors
with at least one alternative date on
which to attend interactive training.
Examples of acceptable vendor training
include on-site cashier training, offsite classroom-style train-the-trainer
or manager training, a training video,
and a training newsletter. All vendor
training must be designed to prevent
program errors and noncompliance and
improve program service.
(2) Content. The annual training must
include instruction on the purpose of
the Program, the supplemental foods
authorized by the State agency, the
minimum varieties and quantities of
authorized supplemental foods that
must be stocked by vendors, the requirement that vendors obtain infant
formula only from sources included on
a list provided by the State agency, the
procedures for transacting and redeeming food instruments and cash-value
vouchers, the vendor sanction system,
the vendor complaint process, the
claims procedures, the State agency’s
policies and procedures regarding the
use of incentive items, and any changes
to program requirements since the last
training.
(3) Delegation. The State agency may
delegate vendor training to a local
agency, a contractor, or a vendor representative if the State agency indicates its intention to do so in its State
Plan
in
accordance
with
§ 246.4(a)(14)(xi). In such cases, the
State agency must provide supervision
and instruction to ensure the uniformity and quality of vendor training.
(4) Documentation. The State agency
must document the content of and vendor participation in vendor training.
(j) Retail food delivery systems: Monitoring vendors and identifying high-risk
vendors—(1) General requirements. The
State agency must design and implement a system for monitoring its vendors for compliance with program requirements. The State agency may delegate vendor monitoring to a local
agency or contractor if the State agency indicates its intention to do so in its
State
Plan
in
accordance
with
§ 246.4(a)(14)(iv). In such cases, the
State agency must provide supervision
and instruction to ensure the uniformity and quality of vendor monitoring.
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(2) Routine monitoring. The State
agency must conduct routine monitoring visits on a minimum of five percent of the number of vendors authorized by the State agency as of October
1 of each fiscal year in order to survey
the types and levels of abuse and errors
among authorized vendors and to take
corrective actions, as appropriate. The
State agency must develop criteria to
determine which vendors will receive
routine monitoring visits and must include such criteria in its State Plan in
accordance with § 246.4(a)(14)(iv).
(3) Identifying high-risk vendors. The
State agency must identify high-risk
vendors at least once a year using criteria developed by FNS and/or other
statistically-based criteria developed
by the State agency. FNS will not
change its criteria more frequently
than once every two years and will provide adequate advance notification of
changes prior to implementation. The
State agency may develop and implement additional criteria. All State
agency-developed criteria must be approved by FNS.
(4) Compliance investigations. (i) Highrisk vendors. The State agency must
conduct compliance investigations of a
minimum of five percent of the number
of vendors authorized by the State
agency as of October 1 of each fiscal
year. The State agency must conduct
compliance investigations on all highrisk vendors up to the five percent
minimum. The State agency may
count toward this requirement a compliance investigation of a high-risk
vendor conducted by a Federal, State,
or local law enforcement agency. The
State agency also may count toward
this requirement a compliance investigation conducted by another WIC
State agency provided that the State
agency implements the option to establish State agency sanctions based on
mandatory sanctions imposed by the
other WIC State agency, as specified in
paragraph (l)(2)(iii) of this section. A
compliance investigation of a high-risk
vendor may be considered complete
when the State agency determines that
a sufficient number of compliance buys
have been conducted to provide evidence of program noncompliance, when
two compliance buys have been conducted in which no program violations
are found, or when an inventory audit
has been completed.
(ii) Randomly selected vendors. If fewer
than five percent of the State agency’s
authorized vendors are identified as
high-risk, the State agency must randomly select additional vendors on
which to conduct compliance investigations sufficient to meet the fivepercent requirement. A compliance investigation of a randomly selected vendor may be considered complete when
the State agency determines that a
sufficient number of compliance buys
have been conducted to provide evidence of program noncompliance, when
two compliance buys are conducted in
which no program violations are found,
or when an inventory audit has been
completed.
(iii) Prioritization. If more than five
percent of the State agency’s vendors
are identified as high-risk, the State
agency must prioritize such vendors so
as to perform compliance investigations of those determined to have the
greatest potential for program noncompliance and/or loss of funds.
(5) Monitoring report. For each fiscal
year, the State agency must send FNS
a summary of the results of its vendor
monitoring containing information
stipulated by FNS. The report must be
sent by February 1 of the following fiscal year. Plans for improvement in the
coming year must be included in the
State
Plan
in
accordance
with
§ 246.4(a)(14)(iv).
(6) Documentation—(i) Monitoring visits. The State agency must document
the following information for all monitoring visits, including routine monitoring visits, inventory audits, and
compliance buys:
(A) the date of the monitoring visit,
inventory audit, or compliance buy;
(B) the name(s) and signature(s) of
the reviewer(s); and
(C) the nature of any problem(s) detected.
(ii) Compliance buys. For compliance
buys, the State agency must also document:
(A) the date of the buy;
(B) a description of the cashier involved in each transaction;
(C) the types and quantities of items
purchased, current shelf prices or
prices charged other customers, and
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price charged for each item purchased,
if available. Price information may be
obtained prior to, during, or subsequent to the compliance buy; and
(D) the final disposition of all items
as destroyed, donated, provided to
other authorities, or kept as evidence.
(k) Retail food delivery systems: Vendor
claims—(1) System to review food instruments and cash-value vouchers for vendor
claims. The State agency must design
and implement a system to review food
instruments and cash-value vouchers
submitted by vendors for redemption
to ensure compliance with the applicable price limitations and to detect
questionable food instruments or cashvalue vouchers, suspected vendor overcharges, and other errors. This review
must examine either all or a representative sample of the food instruments
and cash-value vouchers and may be
done either before or after the State
agency makes payments on the food instruments or cash-value vouchers. The
review of food instruments must include a price comparison or other edit
designed to ensure compliance with the
applicable price limitations and to assist in detecting vendor overcharges.
For printed food instruments and cashvalue vouchers the system also must
detect the following errors—purchase
price missing; participant, parent/caretaker, or proxy signature missing; vendor identification missing; food instruments or cash-value vouchers transacted or redeemed after the specified
time periods; and, as appropriate, altered purchase price. The State agency
must take follow-up action within 120
days of detecting any questionable food
instruments or cash-value vouchers,
suspected vendor overcharges, and
other errors and must implement procedures to reduce the number of errors
when possible.
(2) Delaying payment and establishing
a claim. When the State agency determines the vendor has committed a vendor violation that affects the payment
to the vendor, the State agency must
delay payment or establish a claim.
Such vendor violations may be detected through compliance investigations, food instrument or cash-value
voucher reviews, or other reviews or investigations of a vendor’s operations.
The State agency may delay payment
or establish a claim in the amount of
the full purchase price of each food instrument or cash-value voucher that
contained the vendor overcharge or
other error.
(3) Opportunity to justify or correct.
When payment for a food instrument or
cash-value voucher is delayed or a
claim is established, the State agency
must provide the vendor with an opportunity to justify or correct the vendor
overcharge or other error. If satisfied
with the justification or correction,
the State agency must provide payment or adjust the proposed claim accordingly.
(4) Timeframe and offset. The State
agency must deny payment or initiate
claims collection action within 90 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.
(5) Food instruments and cash-value
vouchers redeemed after the specified period. With justification and documentation, the State agency may pay vendors for food instruments and cashvalue vouchers submitted for redemption after the specified period for redemption. If the total value of such
food instruments or cash-value vouchers submitted at one time exceeds
$500.00, the State agency must obtain
the approval of the FNS Regional Office before payment.
(l) Retail food delivery systems: Vendor
sanctions—(1) Mandatory vendor sanctions—(i) Permanent disqualification. The
State agency must permanently disqualify a vendor convicted of trafficking in food instruments or cashvalue vouchers or selling firearms, ammunition, explosives, or controlled
substances (as defined in section 102 of
the Controlled Substances Act (21
U.S.C. 802)) in exchange for food instruments or cash-value vouchers. A vendor is not entitled to receive any compensation for revenues lost as a result
of such violation. If reflected in its
State Plan, the State agency may impose a civil money penalty in lieu of a
disqualification for this violation when
it determines, in its sole discretion,
and documents that:
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(A) Disqualification of the vendor
would result in inadequate participant
access; or
(B) The vendor had, at the time of
the violation, an effective policy and
program in effect to prevent trafficking; and the ownership of the vendor was not aware of, did not approve
of, and was not involved in the conduct
of the violation.
(ii) Six-year disqualification. The State
agency must disqualify a vendor for six
years for:
(A) One incidence of buying or selling
food instruments, or cash-value vouchers, for cash (trafficking); or
(B) One incidence of selling firearms,
ammunition, explosives, or controlled
substances as defined in 21 U.S.C. 802,
in exchange for food instruments or
cash-value vouchers.
(iii) Three-year disqualification. The
State agency must disqualify a vendor
for three years for:
(A) One incidence of the sale of alcohol or alcoholic beverages or tobacco
products in exchange for food instruments or cash-value vouchers;
(B) A pattern of claiming reimbursement for the sale of an amount of a
specific supplemental food item which
exceeds the store’s documented inventory of that supplemental food item for
a specific period of time;
(C) A pattern of vendor overcharges;
(D)
A
pattern
of
receiving,
transacting and/or redeeming food instruments or cash-value vouchers outside of authorized channels, including
the use of an unauthorized vendor and/
or an unauthorized person;
(E) A pattern of charging for supplemental food not received by the participant; or
(F) A pattern of providing credit or
non-food items, other than alcohol, alcoholic beverages, tobacco products,
cash, firearms, ammunition, explosives, or controlled substances as defined in 21 U.S.C. 802, in exchange for
food instruments or cash-value vouchers.
(iv) One-year disqualification. The
State agency must disqualify a vendor
for one year for:
(A) A pattern of providing unauthorized food items in exchange for food instruments or cash-value vouchers, including charging for supplemental
foods provided in excess of those listed
on the food instrument; or
(B) A pattern of an above-50-percent
vendor providing prohibited incentive
items to customers as set forth in paragraph (g)(3)(iv) of this section, in accordance with the State agency’s policies and procedures required by paragraph (h)(8) of this section.
(v) Second mandatory sanction. When a
vendor, who previously has been assessed a sanction for any of the violations in paragraphs (l)(1)(ii) through
(l)(1)(iv) of this section, receives another sanction for any of these violations, the State agency must double
the second sanction. Civil money penalties may only be doubled up to the
limits
allowed
under
paragraph
(l)(1)(x)(C) of this section.
(vi) Third or subsequent mandatory
sanction. When a vendor, who previously has been assessed two or more
sanctions for any of the violations listed in paragraphs (l)(1)(ii) through
(l)(1)(iv) of this section, receives another sanction for any of these violations, the State agency must double
the third sanction and all subsequent
sanctions. The State agency may not
impose civil money penalties in lieu of
disqualification for third or subsequent
sanctions for violations listed in paragraphs (l)(1)(ii) through (l)(1)(iv) of this
section.
(vii) Disqualification based on a SNAP
disqualification. The State agency must
disqualify a vendor who has been disqualified from SNAP. The disqualification must be for the same length of
time as SNAP disqualification, may
begin at a later date than SNAP disqualification, and is not subject to administrative or judicial review under
the WIC Program.
(viii) Voluntary withdrawal or nonrenewal of agreement. The State agency
may not accept voluntary withdrawal
of the vendor from the Program as an
alternative to disqualification for the
violations listed in paragraphs (l)(1)(i)
through (l)(1)(iv) of this section, but
must enter the disqualification on the
record. In addition, the State agency
may not use nonrenewal of the vendor
agreement as an alternative to disqualification.
(ix) Participant access determinations.
Prior to disqualifying a vendor for a
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§ 246.12
7 CFR Ch. II (1–1–18 Edition)
SNAP disqualification pursuant to
paragraph (l)(1)(vii) of this section or
for any of the violations listed in paragraphs (l)(1)(ii) through (l)(1)(iv) of this
section, the State agency must determine if disqualification of the vendor
would result in inadequate participant
access. The State agency must make
the participant access determination in
accordance with paragraph (l)(8) of this
section. If the State agency determines
that disqualification of the vendor
would result in inadequate participant
access, the State agency must impose a
civil money penalty in lieu of disqualification. However, as provided in paragraph (l)(1)(vi) of this section, the
State agency may not impose a civil
money penalty in lieu of disqualification for third or subsequent sanctions
for violations in paragraphs (l)(1)(ii)
through (l)(1)(iv) of this section. The
State agency must include documentation of its participant access determination and any supporting documentation in the file of each vendor
who is disqualified or receives a civil
money penalty in lieu of disqualification.
(x) Civil money penalty formula. For
each violation subject to a mandatory
sanction, the State agency must use
the following formula to calculate a
civil money penalty imposed in lieu of
disqualification:
(A) Determine the vendor’s average
monthly redemptions for at least the 6month period ending with the month
immediately preceding the month during which the notice of adverse action
is dated;
(B) Multiply the average monthly redemptions figure by 10 percent (.10);
(C) Multiply the product from paragraph (l)(1)(x)(B) of this section by the
number of months for which the store
would have been disqualified. This is
the amount of the civil money penalty,
provided that the civil money penalty
shall not exceed the maximum amount
specified in § 3.91(b)(3)(v) of this title
for each violation. For a violation that
warrants permanent disqualification,
the amount of the civil money penalty
shall be the maximum amount specified in § 3.91(b)(3)(v) of this title for
each violation. When during the course
of a single investigation the State
agency determines a vendor has com-
mitted multiple violations, the State
agency must impose a CMP for each
violation. The total amount of civil
money penalties imposed for violations
investigated as part of a single investigation may not exceed the amount
specified in § 3.91(b)(3)(v) of this title as
the maximum penalty for violations
occurring during a single investigation.
(xi) Notification to FNS. The State
agency must provide the appropriate
FNS office with a copy of the notice of
adverse action and information on vendors it has either disqualified or imposed a civil money penalty in lieu of
disqualification for any of the violations listed in paragraphs (l)(1)(i)
through (l)(1)(iv) of this section. This
information must include the name of
the vendor, address, identification
number, the type of violation(s), and
the length of disqualification or the
length of the disqualification corresponding to the violation for which
the civil money penalty was assessed,
and must be provided within 15 days
after the vendor’s opportunity to file
for a WIC administrative review has expired or all of the vendor’s WIC administrative reviews have been completed.
(xii) Multiple violations during a single
investigation. When during the course of
a single investigation the State agency
determines a vendor has committed
multiple violations (which may include
violations subject to State agency
sanctions), the State agency must disqualify the vendor for the period corresponding to the most serious mandatory violation. However, the State
agency must include all violations in
the notice of administration action. If
a mandatory sanction is not upheld on
appeal, then the State agency may impose a State agency-established sanction.
(2) State agency vendor sanctions. (i)
General requirements. The State agency
may impose sanctions for vendor violations that are not specified in paragraphs (l)(1)(i) through (l)(1)(iv) of this
section as long as such vendor violations and sanctions are included in the
State agency’s sanction schedule.
State agency sanctions may include
disqualifications, civil money penalties
assessed in lieu of disqualification, and
administrative fines. The total period
of disqualification imposed for State
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Food and Nutrition Service, USDA
§ 246.12
agency violations investigated as part
of a single investigation may not exceed one year. A civil money penalty or
fine may not exceed a maximum
amount specified in § 3.91(b)(3)(v) of
this title for each violation. The total
amount of civil money penalties and
administrative fines imposed for violations investigated as part of a single
investigation may not exceed an
amount specified in § 3.91(b)(3)(v) of
this title as the maximum penalty for
violations occurring during a single investigation. A State agency vendor
sanction must be based on a pattern of
violative incidences.
(ii) SNAP civil money penalty for hardship. The State agency may disqualify
a vendor that has been assessed a civil
money penalty for hardship in SNAP,
as provided under § 278.6 of this chapter. The length of such disqualification
must correspond to the period for
which the vendor would otherwise have
been disqualified in SNAP. If a State
agency decides to exercise this option,
the State agency must:
(A) Include notification that it will
take such disqualification action in its
sanction schedule; and
(B) Determine if disqualification of
the vendor would result in inadequate
participant access in accordance with
paragraph (l)(8) of this section. If the
State agency determines that disqualification of the vendor would result in
inadequate participant access, the
State agency may not disqualify the
vendor or impose a civil money penalty
in lieu of disqualification. The State
agency must include documentation of
its participant access determination
and any supporting documentation in
each vendor’s file.
(iii) A mandatory sanction by another
WIC State agency. The State agency
may disqualify a vendor that has been
disqualified or assessed a civil money
penalty in lieu of disqualification by
another WIC State agency for a mandatory vendor sanction. The length of the
disqualification must be for the same
length of time as the disqualification
by the other WIC State agency or, in
the case of a civil money penalty in
lieu of disqualification assessed by the
other WIC State agency, for the same
length of time for which the vendor
would otherwise have been disqualified.
The disqualification may begin at a
later date than the sanction imposed
by the other WIC State agency. If a
State agency decides to exercise this
option, the State agency must:
(A) Include notification that it will
take such action in its sanction schedule; and
(B) Determine if disqualification of
the vendor would result in inadequate
participant access in accordance with
paragraph (l)(8) of this section. If the
State agency determines that disqualification of the vendor would result in
inadequate participant access, the
State agency must impose a civil
money penalty in lieu of disqualification, except that the State agency may
not impose a civil money penalty in
situations in which the vendor has
been assessed a civil money penalty in
lieu of disqualification by the other
WIC State agency. Any civil money
penalty in lieu of disqualification must
be calculated in accordance with paragraph (l)(2)(x) of this section. The State
agency must include documentation of
its participant access determination
and any supporting documentation in
each vendor’s file.
(3) Notification of violations. The State
agency must notify a vendor in writing
when an investigation reveals an initial incidence of a violation for which a
pattern of incidences must be established in order to impose a sanction,
before another such incidence is documented, unless the State agency determines, in its discretion, on a case-bycase basis, that notifying the vendor
would compromise an investigation.
This notification requirement applies
to the violations set forth in paragraphs
(l)(1)(iii)(C)
through
(l)(1)(iii)(F), (l)(1)(iv), and (l)(2)(i) of
this section.
(i) Prior to imposing a sanction for a
pattern of violative incidences, the
State agency must either provide such
notice to the vendor, or document in
the vendor file the reason(s) for determining that such notice would compromise an investigation.
(ii) The State agency may use the
same method of notification which the
State agency uses to provide a vendor
with adequate advance notice of the
time and place of an administrative review in accordance with § 246.18(b)(3).
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§ 246.12
7 CFR Ch. II (1–1–18 Edition)
(iii) If notification is provided, the
State agency may continue its investigation after the notice of violation is
received by the vendor, or presumed to
be received by the vendor, consistent
with the State agency’s procedures for
providing such notice.
(iv) All of the incidences of a violation occurring during the first compliance buy visit must constitute only
one incidence of that violation for the
purpose of establishing a pattern of
incidences.
(v) A single violative incidence may
only be used to establish the violations
set forth in paragraphs (l)(1)(ii)(A),
(l)(1)(ii)(B), and (l)(1)(iii)(A) of this section.
(4) Administrative reviews. The State
agency must provide administrative reviews of sanctions to the extent required by § 246.18.
(5) Installment plans. The State agency may use installment plans for the
collection of civil money penalties and
administrative fines.
(6) Failure to pay a civil money penalty.
If a vendor does not pay, only partially
pays, or fails to timely pay a civil
money penalty assessed in lieu of disqualification, the State agency must
disqualify the vendor for the length of
the disqualification corresponding to
the violation for which the civil money
penalty was assessed (for a period corresponding to the most serious violation in cases where a mandatory sanction included the imposition of multiple civil money penalties as a result
of a single investigation).
(7) Actions in addition to sanctions.
Vendors may be subject to actions in
addition to the sanctions in this section, such as claims pursuant to paragraph (k) of this section and the penalties set forth in § 246.23(c) in the case
of deliberate fraud.
(8) Participant access determination criteria. The State agency must develop
participant access criteria. When making participant access determinations,
the State agency must consider the
availability of other authorized vendors in the same area as the violative
vendor and any geographic barriers to
using such vendors.
(9) Termination of agreement. When the
State agency disqualifies a vendor, the
State agency must also terminate the
vendor agreement.
(m) Home food delivery systems. Home
food delivery systems are systems in
which authorized supplemental foods
are delivered to the participant’s home.
Home food delivery systems must provide for:
(1) Procurement. Procurement of supplemental foods in accordance with
§ 246.24, which may entail measures
such as the purchase of food in bulk
lots by the State agency and the use of
discounts that are available to States.
(2) Accountability. The accountable
delivery of authorized supplemental
foods to participants. The State agency
must ensure that:
(i) Home food delivery contractors
are paid only after the delivery of authorized supplemental foods to participants;
(ii) A routine procedure exists to
verify the correct delivery of authorized supplemental foods to participants, and, at a minimum, such
verification occurs at least once a
month after delivery; and
(iii) Records of delivery of supplemental foods and bills sent or payments received for such supplemental
foods are retained for at least three
years. Federal, State, and local authorities must have access to such
records.
(n) Direct distribution food delivery systems. Direct distribution food delivery
systems are systems in which participants, parents or caretakers of infant
or child participants, or proxies pick
up authorized supplemental foods from
storage facilities operated by the State
agency or its local agencies. Direct distribution food delivery systems must
provide for:
(1) Storage and insurance. Adequate
storage and insurance coverage that
minimizes the danger of loss due to
theft, infestation, fire, spoilage, or
other causes;
(2) Inventory. Adequate inventory
control of supplemental foods received,
in stock, and issued;
(3) Procurement. Procurement of supplemental foods in accordance with
§ 246.24, which may entail measures
such as purchase of food in bulk lots by
the State agency and the use of discounts that are available to States;
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Food and Nutrition Service, USDA
§ 246.12
(4) Availability. The availability of
program benefits to participants and
potential participants who live at great
distance from storage facilities; and
(5) Accountability. The accountable
delivery of authorized supplemental
foods to participants.
(o) Participant parent/caretaker, proxy,
vendor, farmer, farmers’ market, and
home food delivery contractor complaints.
The State agency must have procedures to document the handling of
complaints by participants, parents or
caretakers of infant or child participants, proxies, vendors, farmers, farmers’ markets, home food delivery contractors, and direct distribution contractors. Complaints of civil rights discrimination must be handled in accordance with § 246.8(b).
(p) Food instrument and cash-value
voucher security. The State agency
must develop standards for ensuring
the security of food instruments and
cash-value vouchers from the time the
food
instruments
and
cash-value
vouchers are created to the time they
are issued to participants, parents/
caretakers, or proxies. For pre-printed
food instruments or cash-value vouchers, these standards must include
maintenance of perpetual inventory
records of food instruments or cashvalue vouchers throughout the State
agency’s jurisdiction; monthly physical
inventory of food instruments or cashvalue vouchers on hand throughout the
State agency’s jurisdiction; reconciliation of perpetual and physical inventories of food instruments and cashvalue vouchers; and maintenance of all
food
instruments
and
cash-value
vouchers under lock and key, except
for supplies needed for immediate use.
For EBT and print-on-demand food instruments and cash-value vouchers, the
standards must provide for the accountability and security of the means
to manufacture and issue such food instruments and cash-value vouchers.
(q) Food instrument and cash-value
voucher disposition. The State agency
must account for the disposition of all
food
instruments
and
cash-value
vouchers as either issued or voided, and
as either redeemed or unredeemed. Redeemed food instruments and cashvalue vouchers must be identified as
validly issued, lost, stolen, expired, du-
plicate, or not matching valid enrollment and issuance records. In an EBT
system, evidence of matching redeemed
food instruments to valid enrollment
and issuance records may be satisfied
through the linking of the Primary Account Number (PAN) associated with
the electronic transaction to valid enrollment and issuance records. This
process must be performed within 120
days of the first valid date for participant use of the food instruments and
must be conducted in accordance with
the financial management requirements of § 246.13. The State agency will
be subject to claims as outlined in
§ 246.23(a)(4) for redeemed food instruments or cash-value vouchers that do
not meet the conditions established in
paragraph (q) of this section.
(r) Issuance of food instruments, cashvalue vouchers and authorized supplemental foods. The State agency must:
(1) Parents/caretakers and proxies. Establish uniform procedures that allow
parents and caretakers of infant and
child participants and proxies to obtain
and transact food instruments and
cash-value vouchers or obtain authorized supplemental foods on behalf of a
participant. In determining whether a
particular participant or parent/caretaker should be allowed to designate a
proxy or proxies, the State agency
must require the local agency or clinic
to consider whether adequate measures
can be implemented to provide nutrition education and health care referrals to that participant or, in the case
of an infant or child participant, to the
participant’s parent or caretaker;
(2) Signature requirement. Ensure that
the participant, parent or caretaker of
an infant or child participant, or proxy
signs for receipt of food instruments,
cash-value vouchers or authorized supplemental foods, except as provided in
paragraph (r)(4) of this section;
(3) Instructions. Ensure that participants, parents or caretakers of infant
and child participants, and proxies receive instructions on the proper use of
food
instruments
and
cash-value
vouchers, or on the procedures for obtaining authorized supplemental foods
when food instruments or cash-value
vouchers are not used. The State agency must also ensure that participants,
parents or caretakers of infant and
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§ 246.12
7 CFR Ch. II (1–1–18 Edition)
child participants, and proxies are notified that they have the right to complain about improper vendor, farmer,
farmers’ markets, and home food delivery contractor practices with regard to
program responsibilities;
(4) Food instrument and cash-value
voucher pick up. Require participants,
parents and caretakers of infant and
child participants, and proxies to pick
up food instruments and cash-value
vouchers in person when scheduled for
nutrition education or for an appointment to determine whether participants are eligible for a second or subsequent certification period. However, in
all other circumstances the State agency may provide for issuance through an
alternative means such as EBT or
mailing, unless FNS determines that
such actions would jeopardize the integrity of program services or program
accountability. If a State agency opts
to mail food instruments and cashvalue vouchers, it must provide justification, as part of its alternative
issuance system in its State Plan, as
required in § 246.4(a)(21), for mailing
food
instruments
and
cash-value
voucher to areas where SNAP benefits
are not mailed. State agencies that opt
to mail food instruments and cashvalue vouchers must establish and implement a system that ensures the return of food instruments and cashvalue vouchers to the State or local
agency if a participant no longer resides or receives mail at the address to
which the food instruments and cashvalue vouchers were mailed; and
(5) Maximum issuance of food instruments and cash-value voucher. Ensure
that no more than a three-month supply of food instruments and cash-value
vouchers or a one-month supply of authorized supplemental foods is issued
at any one time to any participant,
parent or caretaker of an infant or
child participant, or proxy.
(6) Any authorized vendor. Each State
agency shall allow participants to receive supplemental foods from any vendor authorized by the State agency
under retail delivery systems.
(s) Payment to vendors, farmers and
home food delivery contractors. The
State agency must ensure that vendors, farmers and home food delivery
contractors are paid promptly. Pay-
ment must be made within 60 days
after valid food instruments or cashvalue vouchers are submitted for redemption. Actual payment to vendors,
farmers and home food delivery contractors may be made by local agencies.
(t) Conflict of interest. The State agency must ensure that no conflict of interest exists, as defined by applicable
State laws, regulations, and policies,
between the State agency and any vendor, farmer, farmers’ markets, or home
food delivery contractor, or between
any local agency and any vendor, farmer, farmers’ markets, or home food delivery contractor under its jurisdiction.
(u) Participant violations and sanctions—(1) General requirements. The
State agency must establish procedures designed to control participant
violations. The State agency also must
establish sanctions for participant violations. Participant sanctions may include disqualification from the Program for a period of up to one year.
(2) Mandatory disqualification. (i) General. Except as provided in paragraphs
(u)(2)(ii) and (u)(2)(iii) of this section,
whenever the State agency assesses a
claim of $100 or more, assesses a claim
for dual participation, or assess a second or subsequent claim of any
amount, the State agency must disqualify the participant for one year.
(ii) Exceptions to mandatory disqualification. The State agency may decide
not to impose a mandatory disqualification if, within 30 days of receipt of
the letter demanding repayment, full
restitution is made or a repayment
schedule is agreed on, or, in the case of
a participant who is an infant, child, or
under age 18, the State or local agency
approves the designation of a proxy.
(iii) Terminating a mandatory disqualification. The State agency may permit
a participant to reapply for the Program before the end of a mandatory
disqualification period if full restitution is made or a repayment schedule
is agreed upon or, in the case of a participant who is an infant, child, or
under age 18, the State or local agency
approves the designation of a proxy.
(3) Warnings before sanctions. The
State agency may provide warnings before imposing participant sanctions.
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Food and Nutrition Service, USDA
§ 246.12
(4) Fair hearings. At the time the
State agency notifies a participant of a
disqualification, the State agency must
advise the participant of the procedures to follow to obtain a fair hearing
pursuant to § 246.9.
(5) Referral to law enforcement authorities. When appropriate, the State agency must refer vendors, home food delivery contractors, farmers, farmers’ markets and participants who violate program requirements to Federal, State,
or local authorities for prosecution
under applicable statutes.
(v) Farmers and farmers’ markets. The
State agency may authorize farmers,
farmers’ markets, and/or roadside
stands to accept the cash-value voucher for eligible fruits and vegetables.
The State agency must enter into written agreements with all authorized
farmers and/or farmers’ markets. The
agreement must be signed by a representative who has legal authority to
obligate the farmer or farmers’ market
and a representative of the State agency. The agreement must be for a period
not to exceed 3 years. Only farmers or
farmers’ markets authorized by the
State agency may redeem the fruit and
vegetable cash-value voucher. The
State agency must require farmers or
farmers’ markets to reapply at the expiration of their agreements and must
provide farmers or farmers markets
with not less than 15 days advance
written notice of the expiration of the
agreement.
(1) The agreement must include the
following provisions, although the
State agency may determine the exact
wording. The farmer or farmers’ market must:
(i) Assure that the cash-value voucher is redeemed only for eligible fruits
and vegetables as defined by the State
agency;
(ii) Provide eligible fruits and vegetables at the current price or less than
the current price charged to other customers;
(iii) Accept the cash-value voucher
within the dates of their validity and
submit such vouchers for payment
within the allowable time period established by the State agency;
(iv) Redeem the cash-value voucher
in accordance with a procedure established by the State agency. Such proce-
dure must include a requirement for
the farmer or farmers’ market to allow
the participant, authorized representative or proxy to pay the difference
when the purchase of fruits and vegetables exceeds the value of the cash-value
vouchers (also known as a split tender
transaction);
(v) Accept training on cash-value
voucher procedures and provide training to any employees with cash-value
voucher responsibilities on such procedures;
(vi) Agree to be monitored for compliance with program requirements, including both overt and covert monitoring;
(vii) Be accountable for actions of
employees in the provision of authorized foods and related activities;
(viii) Pay the State agency for any
cash-value vouchers transacted in violation of this agreement;
(ix) Offer WIC participants, parent or
caretakers of child participants or
proxies the same courtesies as other
customers;
(x) Comply with the nondiscrimination provisions of USDA regulations as
provided in § 248.7; and
(xi) Notify the State agency if any
farmers’ market ceases operation prior
to the end of the authorization period.
(2) The farmer or farmers’ market
must not:
(i) Collect sales tax on cash-value
voucher purchases;
(ii) Seek restitution from WIC participants, parent or caretakers of child
participants or proxies for cash-value
vouchers not paid or partially paid by
the State agency;
(iii) Issue cash change for purchases
that are in an amount less than the
value of the cash-value voucher;
(3) Neither the State agency nor the
farmer or farmers’ market has an obligation to renew the agreement. The
State agency, the farmer, or farmers’
market may terminate the agreement
for cause after providing advance written notification.
(4) Farmer agreements for State agencies that do not authorize farmers. Those
State agencies which authorize farmers’ markets but not individual farmers
shall require authorized farmers’ markets to enter into a written agreement
with each farmer within the market
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§ 246.12
7 CFR Ch. II (1–1–18 Edition)
that is authorized to accept cash-value
vouchers. The State agency shall set
forth the required terms for the written
agreement
as
defined
in
§ 246.12(v)(1) and (v)(2), and provide a
sample agreement for use by the farmers’ market.
(5) The State agency may deny payment to the farmer or farmers’ market
for improperly redeemed cash-value
vouchers and may demand refunds for
payments already made on improperly
redeemed vouchers.
(6) The State agency may disqualify
a farmer or farmers’ market for WIC
Program abuse. The farmer or farmers’
market has the right to appeal a denial
of an application to participate, a disqualification, or a program sanction by
the State agency. Expiration of an
agreement with a farmer or farmers’
market and claims actions under
§ 246.23, are not appealable.
(7) A farmer or farmers’ market
which commits fraud or engages in
other illegal activity is liable to prosecution under applicable Federal, State
or local laws.
(8) Monitoring farmers and farmers’
markets. (i) The State agency must design and implement a system for monitoring its authorized farmers and farmers’ markets for compliance with program requirements. The State agency
must document, at a minimum, the following information for all monitoring
visits: name(s) of the farmer, farmers
market, or roadside stand; name(s) and
signature(s) of the reviewer(s); date of
review; and nature of problem(s) detected.
(ii) Compliance buys. For compliance
buys, the State agency must also document:
(A) The date of the buy;
(B) A description of the farmer (and
farmers’ market, as appropriate) involved in each transaction;
(C) The types and quantities of items
purchased, current retail prices or
prices charged other customers, and
price charged for each item purchased,
if available. Price information may be
obtained prior to, during, or subsequent to the compliance buy; and
(D) The final disposition of all items
as destroyed, donated, provided to
other authorities, or kept as evidence.
(w) EBT—(1) General. All State agencies shall implement EBT statewide in
accordance with paragraph (a) of this
section.
(2) EBT exemptions. The Secretary
may grant an exemption to the October
1, 2020 statewide implementation requirement. To be eligible for an exemption, a State agency shall demonstrate
to the satisfaction of the Secretary one
or more of the following:
(i) There are unusual technological
barriers to implementation;
(ii) Operational costs are not affordable within the nutrition services and
administration grant of the State
agency; or
(iii) It is in the best interest of the
program to grant the exemption.
(3) Implementation date. If the Secretary grants a State agency an exemption, such exemption will remain in effect until: The State agency no longer
meets the conditions on which the exemption was based; the Secretary revokes the exemption or for three years
from the date the exemption was
granted, whichever occurs first.
(x) Electronic benefit requirements—(1)
General. State agencies using EBT shall
issue an electronic benefit that complies with the requirements of paragraph (x)(2) of this section.
(2) Electronic benefits. Each electronic
benefit must contain the following information:
(i) Authorized supplemental foods. The
supplemental foods authorized by food
category, subcategory and benefit
quantity, to include the cash-value
benefit;
(ii) First date of use. The first date of
use on which the electronic benefit
may be used to obtain authorized supplemental foods;
(iii) Last date of use. The last date on
which the electronic benefit may be
used to obtain authorized supplemental
foods. This date must be a minimum of
30 days, or in the month of February 28
or 29 days, from the first date on which
it may be used to obtain authorized
supplemental foods except for the participant’s first month of issuance when
it may be the end of the month or cycle
for which the electronic benefit is
valid; and
(iv) Benefit issuance identifier. A
unique and sequential number. This
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Food and Nutrition Service, USDA
§ 246.12
number enables the identification of
each benefit change (addition, subtraction or update) made to the participant
account.
(3) Vendor identification. The State
agency shall ensure each EBT purchase
submitted for electronic payment is
matched to an authorized vendor,
farmer, or farmers’ market prior to authorizing payment. Each vendor operated by a single business entity must
be identified separately.
(y) EBT management and reporting. (1)
The State agency shall follow the Department Advance Planning Document
(APD) requirements and submit Planning and Implementation APD’s and
appropriate updates, for Department
approval for planning, development and
implementation of initial and subsequent EBT systems.
(2) If a State agency plans to incorporate additional programs in the EBT
system of the State, the State agency
shall consult with State agency officials responsible for administering the
programs prior to submitting the Planning APD (PAPD) document and include the outcome of those discussions
in the PAPD submission to the Department for approval.
(3) Each State agency shall have an
active EBT project by August 1, 2016.
Active EBT project is defined as a formal process of planning, implementation, or statewide implementation of
WIC EBT.
(4) Annually as part of the State
plan, the State agency shall submit
EBT project status reports. At a minimum, the annual status report shall
contain:
(i) Until operating EBT statewide, an
outline of the EBT implementation
goals and objectives as part of the
goals and objectives in § 246.4(a)(1), to
demonstrate
the
State
agency’s
progress toward statewide EBT implementation;
(ii) If operating EBT statewide, any
information on future EBT changes
and procurement updates affecting
present operations; and
(iii) Such other information the Secretary may require.
(5) The State agency shall be responsible for EBT coordination and management.
(z) EBT food delivery methods: Vendor
requirements—(1) General. State agencies using EBT for delivering benefits
shall comply with the vendor requirements in paragraphs (g) through (l) of
this section. In addition, State agencies shall comply with requirements
that are detailed throughout this paragraph (z).
(2) Minimum lane coverage. The Pointof-Sale (POS) terminals, whether single-function equipment or multi-function equipment, shall be deployed as
follows:
(i) Superstores and supermarkets. There
will be one POS terminal for every
$11,000 in monthly WIC redemption up
to a total of four POS terminals, or the
number of lanes in the location, whichever is less. At a minimum, terminals
shall be installed for monthly WIC redemption threshold increments as follows: one terminal for $0 to $11,000; two
terminals for $11,001 to $22,000; three
terminals for $22,001 to $33,000; and four
terminals for $33,001 and above. A State
agency may utilize an alternative installation formula with Department
approval. The monthly redemption levels used for the installation formula
shall be the average redemptions based
on a period of up to 12 months of prior
redemption;
(ii) All other vendors. One POS terminal for every $8,000 in monthly redemption up to a total of four POS terminals, or the number of lanes in the
location; whichever is less. At a minimum, terminals shall be installed for
monthly WIC redemption thresholds as
follows: one terminal for $0 to $8,000;
two terminals for $8,001 to $16,000; three
terminals for $16,001 to $24,000; and four
terminals for $24,001 and above. A State
agency may utilize an alternative installation formula with Department
approval. The monthly redemption levels used for the installation formula
shall be the average redemptions based
on a period of up to 12 months of prior
redemption;
(iii) The State agency shall determine the number of appropriate POS
terminals for authorized farmers and
farmers’ markets;
(iv) For newly authorized WIC vendors deemed necessary for participant
access by the State agency, the vendor
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§ 246.12
7 CFR Ch. II (1–1–18 Edition)
shall be provided one POS terminal unless the State agency determines other
factors in this location warrant additional terminals;
(v) Any authorized vendor who has
been equipped with a POS terminal by
the State agency may submit evidence
additional terminals are necessary
after the initial POS terminals are installed;
(vi) The State agency may provide
authorized vendors with additional
POS terminals above the minimum
number required by this paragraph in
order to permit WIC participants to obtain a shopping list or benefit balance,
as long as the number of terminals provided does not exceed the number of
lanes in the vendor location;
(vii) The State agency may remove
excess POS terminals if actual redemption activity warrants a reduction consistent with the redemption levels outlined in paragraphs (z)(2)(i) through (ii)
of this section.
(3) Payment to vendors, farmers and
farmers’ markets. The State agency
shall ensure that vendors, farmers and
farmers’ markets are paid promptly.
Payment must be made in accordance
with the established Operating Rules
and technical requirements after the
vendor, farmer or farmers’ market has
submitted a valid electronic claim for
payment.
(aa) Imposition of costs on vendors,
farmers and farmers’ markets—(1) Cost
prohibition. Except as otherwise provided in this section, a State agency
shall not impose the costs of any single-function equipment or system required for EBT on any authorized vendor, farmers or farmers’ markets in
order to transact EBT.
(2) Cost sharing. If WIC Program
equipment is multi-function equipment, the State agency shall develop
cost sharing criteria with authorized
WIC vendors, farmers and farmers’
markets for costs associated with such
equipment in accordance with Federal
cost principles. Any cost sharing agreements shall be developed between a
State agency and its vendors, farmers,
or farmers’ markets depending on the
type, scope and capabilities of shared
equipment. The State agency must furnish its allocation and/or cost sharing
methodology to the Department as
part of the Advanced Planning Document for review and approval before incurring costs.
(3) Fees—(i) Third-party processor costs
and fees. The State agency shall not
pay or reimburse vendors, farmers or
farmers’ markets for third-party processing costs and fees for vendors, farmers, or farmers’ markets that elect to
accept
EBT
using
multi-function
equipment. The State agency or its
agent shall not charge any fees to authorized vendors for use of single-function equipment.
(ii) Interchange fees. The State agency
shall not pay or reimburse the vendor,
farmer or farmers’ markets for interchange fees on WIC EBT transactions.
(4) Statewide operations. After completion of statewide EBT implementation,
the State agency shall not:
(i) Pay ongoing maintenance, processing fees or operational costs for any
vendor, farmer or farmers’ market utilizing multi-function systems and
equipment, unless the State agency determines that the vendor is necessary
for participant access. The State agency shall continue to pay ongoing maintenance, processing fees and operational costs of single-function equipment;
(ii) Authorize a vendor, farmer, or
farmers’ market that cannot successfully demonstrate EBT capability in
accordance with State agency requirements, unless the State agency determines the vendor is necessary for participant access.
(bb) EBT Technical standards and requirements. (1) Each State agency, contractor and authorized vendor participating in the program shall follow and
demonstrate compliance with:
(i) Operating rules, standards and
technical requirements as established
by the Secretary; and
(ii) Other industry standards identified by the Secretary.
(2) The State agency shall establish
policy permitting the replacement of
EBT cards and the transfer of participant benefit balances within no more
than seven business days following notice by the participant or proxy to the
State agency.
(3) The State agency shall establish
procedures to provide customer service
during non-business hours that enable
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31
Food and Nutrition Service, USDA
§ 246.14
participants or proxies to report a lost,
stolen, or damaged card, report other
card or benefit issues, receive information on the EBT food balance and receive the current benefit end date. The
State agency shall respond to any report of a lost, stolen, or damaged card
within one business day of the date of
report. If a State agency seeks to implement alternatives to the minimum
service requirements, the agency must
submit the plan to FNS for approval.
(cc) National universal product codes
(UPC) database. The national UPC database is to be used by all State agencies
using EBT to deliver WIC food benefits.
kpayne on DSK54DXVN1OFR with $$_JOB
[65 FR 83278, Dec. 29, 2000, as amended at 70
FR 29579, May 24, 2005; 70 FR 71722, Nov. 29,
2005; 71 FR 56731, Sept. 27, 2006; 73 FR 68995,
Dec. 6, 2007; 73 FR 11312, Mar. 3, 2008; 74 FR
555, Jan. 6, 2009; 74 FR 51758, Oct. 8, 2009; 75
FR 15603, Mar. 30, 2010; 76 FR 59889, Sept. 28,
2011; 79 FR 12299, Mar. 4, 2014; 81 FR 10449,
Mar. 1, 2016; 81 FR 18447, Mar. 31, 2016; 81 FR
66494, Sept. 28, 2016]
§ 246.13 Financial ma-nagement system.
(a) Disclosure of expenditures. The
State agency shall maintain a financial management system which provides accurate, current and complete
disclosure of the financial status of the
Program. This shall include an accounting for all property and other assets and all Program funds received
and expended each fiscal year.
(b) Internal control. The State agency
shall maintain effective control over
and accountability for all Program
grants and funds. The State agency
must have effective internal controls
to ensure that expenditures financed
with Program funds are authorized and
properly chargeable to the Program.
(c) Record of expenditures. The State
agency shall maintain records which
adequately identify the source and use
of funds expended for Program activities. These records shall contain, but
are not limited to, information pertaining to authorization, receipt of
funds, obligations, unobligated balances, assets, liabilities, outlays, and
income.
(d) Payment of costs. The State shall
implement procedures which ensure
prompt and accurate payment of allowable costs, and ensure the allowability
and allocability of costs in accordance
with the cost principles and standard
provisions of this part, 2 CFR part 200,
subpart D, USDA implementing regulations 2 CFR part 400 and part 415, and
FNS guidelines and instructions.
(e) Identification of obligated funds.
The State agency shall implement procedures which accurately identify obligated Program funds at the time the
obligations are made.
(f) Resolution of audit findings. The
State agency shall implement procedures which ensure timely and appropriate resolution of claims and other
matters resulting from audit findings
and recommendations.
(g) Use of minority- and women-owned
banks. Consistent with the national
goals of expanding opportunities for
minority business enterprises, State
and local agencies are encouraged to
use minority- and women-owned banks.
(h) Adjustment of expenditures. The
State agency must adjust projected expenditures to account for redeemed
food instruments and for other changes
as appropriate.
(i) Transfer of cash. The State agency
shall have controls to minimize the
time elapsing between receipt of Federal funds from the U.S. Department of
Treasury and the disbursements of
these funds for Program costs. In the
Letter of Credit system, the State
agency shall make drawdowns from the
U.S. Department of Treasury’s Regional Disbursing Office as close as
possible to the actual date that disbursement of funds is made. Advances
made by the State agency to local
agencies shall also conform to these
same standards.
(j) Local agency financial management.
The State agency shall ensure that all
local agencies develop and implement a
financial management system consistent with requirements prescribed
by FNS and the State agency pursuant
to the requirements of this section.
[50 FR 6121, Feb. 13, 1985; 50 FR 8098, Feb. 28,
1985, as amended at 65 FR 83286, Dec. 29, 2000;
81 FR 66494, Sept. 28, 2016]
§ 246.14 Program costs.
(a) General. (1) The two kinds of allowable costs under the Program are
‘‘food costs’’ and ‘‘nutrition services
and administration costs.’’ In general,
costs necessary to the fulfillment of
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§ 246.14
7 CFR Ch. II (1–1–18 Edition)
Program objectives are to be considered allowable costs. The two types of
nutrition services and administration
costs are:
(i) Direct costs. Those direct costs
that are allowable under 2 CFR part
200, subpart E and USDA implementing
regulations 2 CFR part 400 and part 415.
(ii) Indirect costs. Those indirect costs
that are allowable under 2 CFR part
200, subpart E and USDA implementing
regulations 2 CFR part 400 and part 415.
When computing indirect costs, food
costs may not be used in the base to
which the indirect cost rate is applied.
In accordance with the provisions of 2
CFR part 200, subpart E and USDA implementing regulations 2 CFR part 400
and part 415, a claim for indirect costs
shall be supported by an approved allocation plan for the determination of allowable indirect costs.
(2) Program funds may not be used to
pay for retroactive benefits. Except as
provided in paragraph (e) of this section and §§ 246.16(g) and 246.16(h) of this
part, funds allocated by FNS for food
purchases may not be used to pay nutrition services and administration
costs. However, nutrition services and
administration funds may be used to
pay for food costs.
(b) What costs may I charge to the food
grant? (1) The State agency may use
food funds for costs of:
(i) Acquiring supplemental foods provided to State or local agencies or participants, whichever receives the supplemental food first;
(ii) Warehousing supplemental foods;
and
(iii) Purchasing and renting breast
pumps.
(2) For costs to be allowable, the
State agency must ensure that food
costs do not exceed the customary
sales price charged by the vendor,
home food delivery contractor, or supplier in a direct distribution food delivery system. In addition, food costs may
not exceed the price limitations applicable to the vendor.
(c) Specified allowable nutrition services
and administration costs. Allowable nutrition services and administration
(NSA) costs include the following:
(1) The cost of nutrition education
and breastfeeding promotion and support which meets the requirements of
§ 246.11. During each fiscal year, each
State agency shall expend, for nutrition
education
activities
and
breastfeeding promotion and support
activities, an aggregate amount that is
not less than the sum of one-sixth of
the amount expended by the State
agency for costs of NSA and an amount
equal to its proportionate share of the
national minimum expenditure for
breastfeeding promotion and support
activities. The amount to be spent on
nutrition education shall be computed
by taking one-sixth of the total fiscal
year NSA expenditures. The amount to
be spent by a State agency on
breastfeeding promotion and support
activities shall be an amount that is
equal to at least its proportionate
share of the national minimum
breastfeeding promotion expenditure
as specified in paragraph (c)(1) of this
section. The national minimum expenditure for breastfeeding promotion
and support activities shall be equal to
$21 multiplied by the number of pregnant and breastfeeding women in the
Program, based on the average of the
last three months for which the Department has final data. On October 1,
1996 and each October 1 thereafter, the
$21 will be adjusted annually using the
same inflation percentage used to determine the national administrative
grant per person. If the State agency’s
total reported nutrition education and
breastfeeding promotion and support
expenditures are less than the required
amount of expenditures, FNS will issue
a claim for the difference. The State
agency may request prior written permission from FNS to spend less than
the required portions of its NSA grant
for either nutrition education or for
breastfeeding promotion and support
activities. FNS will grant such permission if the State agency has sufficiently documented that other resources, including in-kind resources,
will be used to conduct these activities
at a level commensurate with the requirements of this paragraph (c)(1).
However, food costs used to purchase
or rent breast pumps may not be used
for this purpose. Nutrition education,
including breastfeeding promotion and
support, costs are limited to activities
which are distinct and separate efforts
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Food and Nutrition Service, USDA
§ 246.14
to help participants understand the importance of nutrition to health. The
cost of dietary assessments for the purpose of certification, the cost of prescribing and issuing supplemental
foods, the cost of screening for drug
and other harmful substance use and
making referrals to drug and other
harmful substance abuse services, and
the cost of other health-related screening shall not be applied to the expenditure requirement for nutrition education and breastfeeding promotion
and support activities. The Department
shall advise State agencies regarding
methods for minimizing documentation of the nutrition education and
breastfeeding promotion and support
expenditure requirement. Costs to be
applied to the one-sixth minimum
amount required to be spent on nutrition education and the target share of
funds required to be spent on
breastfeeding promotion and support
include, but need not be limited to—
(i) Salary and other costs for time
spent on nutrition education and
breastfeeding promotion and support
consultations whether with an individual or group;
(ii) The cost of procuring and producing
nutrition
education
and
breastfeeding promotion and support
materials including handouts, flip
charts, filmstrips, projectors, food
models or other teaching aids, and the
cost of mailing nutrition education or
breastfeeding promotion and support
materials to participants;
(iii) The cost of training nutrition or
breastfeeding promotion and support
educators, including costs related to
conducting training sessions and purchasing and producing training materials;
(iv) The cost of conducting evaluations
of
nutrition
education
or
breastfeeding promotion and support
activities, including evaluations conducted by contractors;
(v) Salary and other costs incurred in
developing the nutrition education and
breastfeeding promotion and support
portion of the State Plan and local
agency
nutrition
education
and
breastfeeding promotion and support
plans; and
(vi) The cost of monitoring nutrition
education and breastfeeding promotion
and support activities.
(2) The cost of Program certification,
nutrition assessment and procedures
and equipment used to determine nutritional risk, including the following:
(i) Laboratory fees incurred for up to
two hematological tests for anemia per
individual per certification period. The
first test shall be to determine anemia
status. The second test may be performed only in follow up to a finding of
anemia when deemed necessary for
health monitoring as determined by
the WIC State agency;
(ii) Expendable medical supplies;
(iii) Medical equipment used for taking
anthropometric
measurements,
such as scales, measuring boards, and
skin fold calipers; and for blood analysis to detect anemia, such as
spectrophotometers,
hematofluorometers and centrifuges;
and
(iv) Salary and other costs for time
spent on nutrition assessment and certification.
(3) The cost of outreach services.
(4) The cost of administering the food
delivery system, including the cost of
transporting food.
(5) The cost of translators for materials and interpreters.
(6) The cost of fair hearings, including the cost of an independent medical
assessment of the appellant, if necessary.
(7) The cost of transporting participants to clinics when prior approval for
using Program funds to provide transportation has been granted by the
State agency and documentation that
such service is considered essential to
assure Program access has been filed at
the State agency. Direct reimbursement to participants for transportation
cost is not an allowable cost.
(8) The cost of monitoring and reviewing Program operations.
(9) The cost, exclusive of laboratory
tests, of screening for drug and other
harmful substance use and making referrals for counseling and treatment
services.
(10) The cost of breastfeeding aids
which directly support the initiation
and continuation of breastfeeding.
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§ 246.15
7 CFR Ch. II (1–1–18 Edition)
(d) Costs allowable with approval. The
costs of capital expenditures exceeding
the dollar threshold established in
Agency policy and guidance are allowable only with the approval of FNS
prior to the capital investment. These
expenditures include the costs of facilities, equipment (including medical
equipment), automated data processing
(ADP) projects, other capital assets,
and any repairs that materially increase the value or useful life of such
assets.
(e) Use of funds recovered from vendors,
participants, or local agencies. (1) The
State agency may keep funds collected
through the recovery of claims assessed against vendors, participants, or
local agencies. Recovered funds include
those withheld from a vendor as a result of reviews of food instruments
prior to payment. Recovered funds may
be used for either food or NSA costs.
(2) These recovered funds may be
used in the fiscal year:
(i) In which the initial obligation was
made;
(ii) In which the claim arose;
(iii) In which the funds are collected;
or
(iv) after the funds are collected.
(3) The State agency may not credit
any recoveries until:
(i) In the case of a vendor claim, the
vendor has had the opportunity to correct or justify the error or apparent
overcharge
in
accordance
with
§ 246.12(k)(3);
(ii) In the case of a participant, any
administrative hearing requested in accordance with § 246.9 has been completed; or
(iii) In the case of a local agency
claim, any administrative review requested in accordance with the local
agency agreement has been completed.
(4) The State agency must report
vendor, participant, and local agency
recoveries to FNS through the normal
reporting process;
(5) The State agency must keep documentation supporting the amount and
use of these vendor, participant, and
local agency recoveries.
(f) Use of funds received as rebates from
manufacturers. The State agency must
credit and report rebate payments received from manufacturers in the
month in which the payments are received.
[50 FR 6121, Feb. 13, 1987, as amended at 52
FR 21237, June 4, 1987; 53 FR 25314, July 6,
1988; 54 FR 18091, Apr. 27, 1989; 58 FR 11507,
Feb. 26, 1993; 59 FR 11503, Mar. 11, 1994; 63 FR
63974, Nov. 18, 1998; 64 FR 67999, Dec. 6, 1999;
64 FR 70178, Dec. 16, 1999; 65 FR 83286, Dec. 29,
2000; 71 FR 56731, Sept. 27, 2006; 73 FR 11312,
Mar. 3, 2008; 76 FR 59889, Sept. 28, 2011; 81 FR
66494, Sept. 28, 2016]
§ 246.15 Program income other than
grants.
(a) Interest earned on advances. Interest earned on advances of Program
funds at the State and local levels shall
be treated in accordance with the provisions of 31 CFR part 205, which implement the requirements of the Cash
Management Improvement Act of 1990.
However, State agencies will not incur
an interest liability to the Federal government on rebate funds for infant formula or other foods, provided that all
interest earned on such funds is used
for program purposes.
(b) Other Program income. The State
agency may use current program income (applied in accordance with the
addition method described in 2 CFR
part 200, subpart D and USDA implementing regulations 2 CFR part 400 and
part 415) for costs incurred in the current fiscal year and, with the approval
of FNS, for costs incurred in previous
years or subsequent fiscal years. Provided that the costs supported by the
income further the broad objectives of
the Program, they need not be a kind
that would be permissible as charges to
Federal funds. Money received by the
State agency as a result of civil money
penalties or fines assessed against a
vendor and any interest charged in the
collection of these penalties and fines
shall be considered as program income.
[50 FR 6121, Feb. 13, 1985, as amended at 63
FR 63974, Nov. 18, 1998; 64 FR 13324, Mar. 18,
1999; 71 FR 56731, Sept. 27, 2006; 81 FR 66494,
Sept. 28, 2016]
§ 246.16
Distribution of funds.
(a) General. This paragraph describes
the timeframes for distribution of appropriated funds by the Department to
participating State agencies and the
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Food and Nutrition Service, USDA
§ 246.16
authority for the Secretary to use appropriated funds for evaluation studies
and demonstration projects.
(1) Authorized appropriations to
carry out the provisions of this section
may be made not more than 1 year in
advance of the beginning of the fiscal
year in which the funds shall become
available for disbursement to the State
agencies. The funds shall remain available for the purposes for which appropriated until expended.
(2) In the case of appropriations legislation providing funds through the end
of a fiscal year, the Secretary shall
issue to State agencies an initial allocation of funds provided under such
legislation not later than the expiration of the 15-day period beginning on
the date of the enactment and subsequent allocation of funds shall be
issued not later than the beginning of
each of the second, third and fourth
quarters of the fiscal year.
(3) Allocations of funds pursuant to
paragraph (a)(2) of this section shall be
made as follows: The initial allocation
of funds to State agencies shall include
not less than 1⁄3 of the appropriated
amounts for the fiscal year. The allocation of funds to be made not later than
the beginning of the second and third
quarters shall each include not less
than 1⁄4 of the appropriated amounts for
the fiscal year.
(4) In the case of legislation providing funds for a period that ends
prior to the end of a fiscal year, the
Secretary shall issue to State agencies
an initial allocation of funds not later
than the expiration of the 10-day period
beginning on the date of enactment. In
the case of legislation providing appropriations for a period of not more than
4 months, all funds must be allocated
to State agencies except those reserved
by the Secretary to carry out paragraph (a)(6) of this section.
(5) In any fiscal year unused amounts
from a prior fiscal year that are identified by the end of the first quarter of
the fiscal year shall be recovered and
reallocated not later than the beginning of the second quarter of the fiscal
year. Unused amounts from a prior fiscal year that are identified after the
end of the first quarter of the fiscal
year shall be recovered and reallocated
on a timely basis.
(6) Up to one-half of one percent of
the sums appropriated for each fiscal
year, not to exceed $5,000,000, shall be
available to the Secretary for the purpose of evaluating Program performance, evaluating health benefits, providing technical assistance to improve
State agency administrative systems,
preparing reports on program participant characteristics, and administering
pilot projects, including projects designed to meet the special needs of migrants, Indians, rural populations, and
to carry out technical assistance and
research evaluation projects for the
WIC Farmers’ Market Nutrition Program.
(b) Distribution and application of
grant funds to State agencies. Notwithstanding any other provision of law,
funds made available to the State
agencies for the Program in any fiscal
year will be managed and distributed
as follows:
(1) The State agency shall ensure
that all Program funds are used only
for Program purposes. As a prerequisite to the receipt of funds, the
State agency shall have executed an
agreement with the Department and
shall have received approval of its
State Plan.
(2) Notwithstanding any other provision of law, all funds not made available to the Secretary in accordance
with paragraph (a)(6) of this section
shall be distributed to State agencies
on the basis of funding formulas which
allocate funds to all State agencies for
food costs and NSA costs incurred during the fiscal year for which the funds
had been made available to the Department. Final State agency grant levels
as determined by the funding formula
and State agency breastfeeding promotion and support expenditure targets will be issued in a timely manner.
(3) When may I transfer funds from one
fiscal year to another?—(i) Back spend
authority. The State agency may back
spend into the prior fiscal year up to
an amount equal to one percent of its
current year food grant and one percent of its current year NSA grant.
Food funds spent back may be used
only for food costs incurred during the
prior fiscal year. NSA funds spent back
may be used for either food or NSA
costs incurred during the prior fiscal
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§ 246.16
7 CFR Ch. II (1–1–18 Edition)
year. With prior FNS approval, the
State agency may also back spend food
funds up to an amount equal to three
percent of its current year food grant
in a fiscal year for food costs incurred
in the prior fiscal year. FNS will approve such a request only if FNS determines there has been a significant reduction in infant formula cost containment savings that affected the State
agency’s ability to maintain its participation level.
(ii) Spend forward authority. (A) The
State agency may spend forward NSA
funds up to an amount equal to three
(3) percent of its total grant (NSA plus
food grants) in any fiscal year. These
NSA funds spent forward may be used
only for NSA costs incurred in the next
fiscal year. Any food funds that the
State agency converts to NSA funds
pursuant to paragraph (f) of this section (based on projected or actual participation increases during a fiscal
year) may not be spent forward into
the next fiscal year. With prior FNS
approval, the State agency may spend
forward additional NSA funds up to an
amount equal to one-half of one percent of its total grant. These funds are
to be used in the next fiscal year for
the development of a management information system, including an electronic benefit transfer system.
(B) Funds spent forward will not affect the amount of funds allocated to
the State agency for any fiscal year.
Funds spent forward must be the first
funds expended by the State agency for
costs incurred in the next fiscal year.
(iii) Reporting requirements. In addition to obtaining prior FNS approval
for certain spend forward/back spending options, the State agency must report to FNS the amount of all funds it
already has or intends to back spend
and spend forward. The spending options must be reported at closeout.
(c) Allocation formula. State agencies
shall receive grant allocations according to the formulas described in this
paragraph. To accomplish the distribution of funds under the allocation formulas, State agencies shall furnish the
Department with any necessary financial and Program data.
(1) Use of participation data in the formula. Wherever the formula set forth in
paragraphs (c)(2) and (c)(3) of this sec-
tion require the use of participation
data, the Department shall use participation data reported by State agencies
according to § 246.25(b).
(2) How is the amount of NSA funds determined? The funds available for allocation to State agencies for NSA for
each fiscal year must be sufficient to
guarantee a national average per participant NSA grant, adjusted for inflation. The amount of the national average per participant grant for NSA for
any fiscal year will be an amount equal
to the national average per participant
grant for NSA issued for the preceding
fiscal year, adjusted for inflation. The
inflation adjustment will be equal to
the percentage change between two
values. The first is the value of the
index for State and local government
purchases, as published by the Bureau
of Economic Analysis of the Department of Commerce, for the 12-month
period ending June 30 of the second
preceding fiscal year. The second is the
best estimate that is available at the
start of the fiscal year of the value of
such index for the 12-month period ending June 30 of the previous fiscal year.
Funds for NSA costs will be allocated
according to the following procedure:
(i) Fair share target funding level determination. For each State agency, FNS
will establish, using all available NSA
funds, an NSA fair share target funding
level which is based on each State
agency’s average monthly participation level for the fiscal year for which
grants are being calculated, as projected by FNS. Each State agency receives an adjustment to account for
the higher per participant costs associated with small participation levels
and differential salary levels relative
to a national average salary level. The
formula shall be adjusted to account
for these cost factors in the following
manner: 90 percent of available funds
shall provide compensation based on
rates which are proportionately higher
for the first 15,000 or fewer participants, as projected by FNS, and 10 percent of available funds shall provide
compensation based on differential salary levels, as determined by FNS.
(ii) Base funding level. To the extent
funds are available and subject to the
provisions of paragraph (c)(2)(iv) of this
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Food and Nutrition Service, USDA
§ 246.16
section, each State agency shall receive an amount equal to 100 percent of
the final formula-calculated NSA grant
of the preceding fiscal year, prior to
any operational adjustment funding allocations
made
under
paragraph
(c)(2)(iv) of this section. If funds are
not available to provide all State agencies with their base funding level, all
State agencies shall have their base
funding level reduced by a pro-rata
share as required by the shortfall of
available funds.
(iii) Fair share allocation. Any funds
remaining available for allocation for
NSA after the base funding level required by paragraph (c)(2)(ii) of this
section has been completed and subject
to the provisions of paragraph (c)(2)(iv)
of this section shall be allocated to
bring each State agency closer to its
NSA fair share target funding level.
FNS shall make fair share allocation
funds available to each State agency
based on the difference between the
NSA fair share target funding level and
the base funding level, which are determined in accordance with paragraphs
(c)(2)(i) and (c)(2)(ii) of this section, respectively. Each State agency’s difference shall be divided by the sum of
the differences for all State agencies,
to determine the percent share of the
available fair share allocation funds
each State agency shall receive.
(iv) Operational adjustment funds.
Each State agency’s final NSA grant
shall be reduced by up to 10 percent,
and these funds shall be aggregated for
all State agencies within each FNS region to form an operational adjustment
fund. The Regions shall allocate these
funds to State agencies according to
national guidelines and shall consider
the varying needs of State agencies
within the region.
(v) Operational level. The sum of each
State agency’s stability, residual and
operational adjustment funds shall
constitute the State agency’s operational level. This operational level
shall remain unchanged for such year
even if the number of Federally-supported participants in the program at
such State agency is lower than the
Federally-projected participation level.
However, if the provisions of paragraph
(e)(2)(ii) of this section are applicable,
a State agency will have its oper-
ational level for NSA reduced in the
immediately succeeding fiscal year.
(3) Allocation of food benefit funds. In
any fiscal year, any amounts remaining from amounts appropriated for
such fiscal year and amounts appropriated from the preceding fiscal year
after making allocations under paragraph (a)(6) of this section and allocations for nutrition services and administration (NSA) as required by paragraph (c)(2) of this section shall be
made available for food costs. Allocations to State agencies for food costs
will be determined according to the following procedure:
(i) Fair share target funding level determination. (A) For each State agency,
FNS will establish a fair share target
funding level which shall be an amount
of funds proportionate to the State
agency’s share of the national aggregate population of persons who are income eligible to participate in the Program based on the 185 percent of poverty criterion. The Department will determine each State agency’s population of persons categorically eligible
for WIC which are at or below 185% of
poverty, through the best available,
nationally uniform, indicators as determined by the Department. If the
Commodity Supplemental Food Program (CSFP) also operates in the area
served by the WIC State agency, the
number of participants in such area
participating in the CSFP but otherwise eligible to participate in the WIC
Program, as determined by FNS, shall
be deducted from the WIC State agency’s population of income eligible persons. If the State agency chooses to exercise the option in § 246.7(c)(2) to limit
program participation to U.S. citizens,
nationals, and qualified aliens, FNS
will reduce the State agency’s population of income eligible persons to reflect the number of aliens the State
agency declares no longer eligible.
(B) The Department may adjust the
respective amounts of food funds that
would be allocated to a State agency
which is outside the 48 contiguous
states and the District of Columbia
when the State agency can document
that economic conditions result in
higher food costs for the State agency.
Prior to any such adjustment, the
State agency must demonstrate that it
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§ 246.16
7 CFR Ch. II (1–1–18 Edition)
has successfully implemented voluntary cost containment measures,
such as improved vendor management
practices, participation in multi-state
agency infant formula rebate contracts
or other cost containment efforts. The
Department may use the Thrifty Food
Plan amounts used in SNAP, or other
available data, to formulate adjustment factors for such State agencies.
(ii) Prior year grant level allocation. To
the extent funds are available, each
State agency shall receive a prior year
grant allocation equal to its final authorized grant level as of September 30
of the prior fiscal year. If funds are not
available to provide all State agencies
with their full prior year grant level allocation, all State agencies shall have
their full prior year grant level allocation reduced by a pro-rata share as required by the shortfall of available
funds.
(iii) Inflation/fair share allocation. (A)
If funds remain available after the allocation of funds under paragraph
(c)(3)(ii) of this section, the funds shall
be allocated as provided in this paragraph (c)(3)(iii). First, FNS will calculate a target inflation allowance by
applying the anticipated rate of food
cost inflation, as determined by the
Department, to the prior year grant
funding level. Second, FNS will allocate 80 percent of the available funds
to all State agencies in proportionate
shares to meet the target inflation allowance. Third, FNS will allocate 20
percent of the available funds to each
State agency which has a prior year
grant level allocation, as determined in
paragraph (c)(3)(ii) of this section and
adjusted for inflation as determined in
this paragraph (c)(3)(iii), which is still
less than its fair share target funding
level. The amount of funds allocated to
each State agency shall be based on the
difference between its prior year grant
level allocation plus target inflation
funds and the fair share funding target
level. Each State agency’s difference
shall be divided by the sum of the differences for all such State agencies, to
determine the percentage share of the
20 percent of available funds each State
agency shall receive. In the event a
State agency declines any of its allocation under either this paragraph
(c)(3)(iii) or paragraph (c)(3)(ii) of this
section, the declined funds shall be reallocated in the percentages and manner described in this paragraph
(c)(3)(iii). Once all State agencies receive allocations equal to their full
target inflation allowance, any remaining funds shall be allocated or reallocated, in the manner described in this
paragraph (c)(3)(iii), to those State
agencies still under their fair share
target funding level.
(B) In the event funds still remain
after completing the distribution in
paragraph (c)(3)(iii)(A) of this section,
these funds shall be allocated to all
State agencies including those with a
stability allocation at, or greater than,
their fair share allocation. Each State
agency which can document the need
for additional funds shall receive additional funds based on the difference between its prior year grant level and its
fair share allocation. State agencies
closest to their fair share allocation
shall receive first consideration.
(iv) Migrant services. At least 9⁄10 of
one percent of appropriated funds for
each fiscal year shall be available first
to assure service to eligible members of
migrant populations. For those State
agencies serving migrants, a portion of
the grant shall be designated to each
State agency for service to members of
migrant populations based on that
State agency’s prior year reported migrant participation. The national aggregate amount made available first
for this purpose shall equal 9⁄10 of one
percent of all funds appropriated each
year for the Program.
(v) Special provisions for Indian State
agencies. The Department may choose
to adjust the allocations and/or eligibles data among Indian State agencies,
or among Indian State agencies and
the geographic State agencies in which
they are located when eligibles data for
the State agencies’ population is determined to not fairly represent the population to be served. Such allocations
may be redistributed from one State
agency to another, based on negotiated
agreements among the affected State
agencies approved by FNS.
(4) Adjustment for new State agencies.
Whenever a State agency that had not
previously administered the program
enters into an agreement with the Department to do so during a fiscal year,
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Food and Nutrition Service, USDA
§ 246.16
the Department shall make any adjustments to the requirements of this section that are deemed necessary to establish an appropriate initial funding
level for such State agency.
(d) Distribution of funds to local agencies. The State agency shall provide to
local agencies all funds made available
by the Department, except those funds
necessary for allowable State agency
NSA costs and food costs paid directly
by the State agency. The State agency
shall distribute the funds based on
claims submitted at least quarterly by
the local agency. Where the State
agency advances funds to local agencies, the State agency shall ensure that
each local agency has funds to cover
immediate disbursement needs, and the
State agency shall offset the advances
made against incoming claims as they
are submitted to ensure that funding
levels reflect the actual expenditures
reported by the local agency. Upon receipt of Program funds from the Department, the State agency shall take
the following actions:
(1) Distribute funds to cover expected
food cost expenditures and/or distribute caseload targets to each local
agency which are used to project food
cost expenditures.
(2) Allocate funds to cover expected
local agency NSA costs in a manner
which takes into consideration each
local agency’s needs. For the allocation
of NSA funds, the State agency shall
develop an NSA funding procedure, in
cooperation with representative local
agencies, which takes into account the
varying needs of the local agencies.
The State agency shall consider the
views of local agencies, but the final
decision as to the funding procedure remains with the State agency. The
State agency shall take into account
factors it deems appropriate to further
proper, efficient and effective administration of the program, such as local
agency staffing needs, density of population, number of persons served, and
availability of administrative support
from other sources.
(3) The State agency may provide in
advance to any local agency any
amount of funds for NSA deemed necessary for the successful commencement or significant expansion of program operations during a reasonable
period following approval of a new
local agency, a new cost containment
measure, or a significant change in an
existing cost containment measure.
(e) Recovery and reallocation of funds.
(1) Funds may be recovered from a
State agency at any time the Department determines, based on State agency reports of expenditures and operations, that the State agency is not expending funds at a rate commensurate
with the amount of funds distributed
or provided for expenditures under the
Program. Recovery of funds may be either voluntary or involuntary in nature. Such funds shall be reallocated by
the Department through application of
appropriate formulas set forth in paragraph (c) of this section.
(2) Performance standards. The following standards shall govern expenditure performance.
(i) The amount allocated to any
State agency for food benefits in the
current fiscal year shall be reduced if
such State agency’s food expenditures
for the preceding fiscal year do not
equal or exceed 97 percent of the
amount allocated to the State agency
for such costs. Such reduction shall
equal the difference between the State
agency’s preceding year food expenditures and the performance expenditure
standard amount. For purposes of determining the amount of such reduction, the amount allocated to the State
agency for food benefits for the preceding fiscal year shall not include
food funds expended for food costs incurred under the spendback provision
in paragraph (b)(3)(i) of this section or
conversion authority in paragraph (g)
of this section. Temporary waivers of
the performance standard may be
granted at the discretion of the Department.
(ii) Reduction of NSA grant. FNS will
reduce the State agency’s NSA grant
for the next fiscal year if the State
agency’s current fiscal year per participant NSA expenditure is more than 10
percent higher than its per participant
NSA grant. To avoid a reduction to its
NSA grant level, the State agency may
submit a ‘‘good cause’’ justification explaining why it exceeded the applicable
limit on excess NSA expenditures. This
justification must be submitted at the
same time as the close-out report for
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§ 246.16
7 CFR Ch. II (1–1–18 Edition)
the applicable fiscal year. Good cause
may include dramatic and unforeseen
increases in food costs, which would
prevent a State agency from meeting
its projected participation level.
(iii) Spend forward funds. If any State
agency notifies the Department of its
intent to spend forward a specific
amount of funds for expenditure in the
subsequent fiscal year, in accordance
with paragraph (b)(3)(ii) of this section,
such funds shall not be subject to recovery by the Department.
(f) How do I qualify to convert food
funds to NSA funds based on increased
participation?—(1) Requirements. The
State agency qualifies to convert food
funds to NSA funds based on increased
participation in any fiscal year in two
ways:
(i) Approved plan. A State agency
may submit a plan to FNS to reduce
average food costs per participant and
to increase participation above the
FNS-projected level for the State agency. If approved, the State agency may
use funds allocated for food costs to
pay NSA costs.
(ii) Participation increases achieved.
The State agency may also convert
food funds to NSA funds in any fiscal
year if it achieves, through acceptable
measures, increases in participation in
excess of the FNS-projected level for
the State agency. Acceptable measures
include use of cost containment measures, curtailment of vendor abuse, and
breastfeeding promotional activities.
FNS will disallow the State agency’s
conversion of food funds to NSA funds
in accordance with paragraph (h) of
this section if:
(A) The State agency increases its
participation level through measures
that are not in the nutritional interests of participants; or
(B) It is not otherwise allowable
under program regulations.
(2) Limitation. The State agency may
convert food funds only to the extent
that the conversion is necessary—
(i) To cover NSA expenditures in the
current fiscal year that exceed the
State agency’s NSA grant for the current fiscal year and any NSA funds
which the State agency has spent forward into the current fiscal year; and
(ii) To ensure that the State agency
maintains the level established for the
per participant NSA grant for the current fiscal year.
(3) Maximum amount. The maximum
amount the State agency may convert
equals the State agency’s conversion
rate times the projected or actual participation increase, as applicable. The
conversion rate is the same as the per
participant NSA grant and is determined by dividing the State agency’s
NSA grant by the FNS-projected participation level. The NSA grant used in
the calculation equals the initial allocation of current year funds plus the
operational adjustment funding allocated to the State agency for that fiscal year.
(g) How do I qualify to convert food
funds to NSA funds for service to remote
Indian or Native villages?—(1) Eligible
State agencies. Only State agencies located in noncontiguous States containing a significant number of remote
Indian or Native villages qualify to
convert food funds to NSA funds under
this paragraph (g) in any fiscal year.
(2) Limitation. In the current fiscal
year, food funds may be converted only
to the extent necessary to cover expenditures incurred:
(i) In providing services (including
the full cost of air transportation and
other transportation) to remote Indian
or Native villages; and
(ii) To provide breastfeeding support
in those areas that exceed the State
agency’s NSA grant for the current fiscal year and any NSA funds which the
State agency has spent forward into
the current fiscal year.
(h) What happens at the end of the fiscal year in which food funds are converted? At the end of the fiscal year,
the Department will determine the
amount of food funds which the State
agency was entitled to convert to NSA
funds under paragraphs (f) and (g) of
this section. In the event that the
State agency has converted more than
the permitted amount of funds, the Department will disallow the amount of
excess conversion.
(i) How do converted funds affect the
calculation of my prior year food grant
and base NSA grant? For purposes of establishing a State agency’s prior year
food grant and base NSA grant under
paragraphs (c)(2)(i) and (c)(3)(i) of this
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Food and Nutrition Service, USDA
§ 246.16a
section, respectively, amounts converted from food funds to NSA funds
under paragraphs (f) and (g) of this section and § 246.14(e) during the preceding
fiscal year will be treated as though no
conversion had taken place.
(j) Inflation adjustment of the fruit and
vegetable voucher. The monthly cash
value of the fruit and vegetable voucher shall be adjusted annually for inflation. Adjustments are effective the
first day of each fiscal year beginning
on or after October 1, 2008. The inflation-adjusted value of the voucher
shall be equal to a base value increased
by a factor based on the Consumer
Price Index for fresh fruits and vegetables, as provided in this section.
(1) Adjustment year. The adjustment
year is the fiscal year that begins October 1 of the current calendar year.
(2) Base value of the fruit and vegetable
voucher. The base year for calculation
of the value of the fruit and vegetable
voucher is fiscal year 2008. The base
value to be used equals:
(i) $8 for children; and
(ii) $10 for women.
(3) Adjusted value of the fruit and vegetable voucher. The adjusted value of the
fruit and vegetable voucher is the cash
value of the voucher for adjustment
years beginning on or after October 1,
2008. The adjusted value is the base
value increased by an amount equal to
the base value of the fruit and vegetable voucher:
(i) Multiplied by the inflation adjustment described in paragraph (j)(4) of
this section; and
(ii) Subject to rounding as described
in paragraph (j)(5) of this section.
(4) Inflation adjustment. The inflation
adjustment of the fruit and vegetable
voucher shall equal the percentage (if
any) by which the annual average
value of the Consumer Price Index for
fresh fruits and vegetables, computed
from monthly values published by the
Bureau of Labor Statistics, for the
twelve months ending on March 31 of
the fiscal year immediately prior to
the adjustment year, exceeds the average of the monthly values of that index
for the twelve months ending on March
31, 2007.
(5) Rounding. If any increase in the
cash value of the voucher determined
under paragraph (j)(3) of this section is
not a multiple of $1, such increase shall
be rounded to the next lowest multiple
of $1. However, if the adjusted value of
the voucher for the adjustment year, as
determined under paragraph (j)(3) of
this section, is lower than the adjusted
value for the fiscal year immediately
prior to the adjustment year, then the
adjusted value of the voucher will remain unchanged from that immediate
prior fiscal year.
[50 FR 6121, Feb. 13, 1985]
EDITORIAL NOTE: For FEDERAL REGISTER citations affecting § 246.16, see the List of CFR
Sections Affected, which appears in the
Finding Aids section of the printed volume
and at www.fdsys.gov.
§ 246.16a Infant formula and authorized foods cost containment.
(a) Who must use cost containment procedures for infant formula? All State
agencies must continuously operate a
cost containment system for infant formula that is implemented in accordance with this section except:
(1) State agencies with home delivery
or direct distribution food delivery systems;
(2) Indian State agencies with 1,000 or
fewer participants in April of any fiscal
year, which are exempt for the following fiscal year;
(3) State agencies granted a waiver
under paragraph (e) of this section; and
(4) State agencies granted a postponement under paragraph (f) of this
section.
(b) What cost containment procedures
must be used? State agencies must use
either a single-supplier competitive
system as outlined in paragraph (c) of
this section, or an alternative cost containment system as outlined in paragraph (d) of this section.
(c) What is the single-supplier competitive system? (1) Under the single-supplier competitive system, a State agency solicits sealed bids from infant formula manufacturers to supply and provide a rebate for infant formulas. The
State agency must conduct the procurement in a manner that maximizes
full and open competition consistent
with the requirements of this section.
A State agency must:
(i) Provide a minimum of 30 days between the publication of the solicitation and the date on which the bids are
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§ 246.16a
7 CFR Ch. II (1–1–18 Edition)
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due, unless exempted by the Secretary;
and
(ii) Publicly open and read all bids
aloud on the day the bids are due.
(2) How must a State agency structure
the bid solicitation? (i) Single solicitation.
Under the single solicitation system,
the State agency’s bid solicitation
must require the winning bidder to
supply and provide a rebate on all infant formulas it produces that the
State agency chooses to issue, except
exempt infant formulas. Rebates must
also be paid on any new infant formulas that are introduced after the
contract is awarded. The solicitation
must require bidders that do not
produce a soy-based infant formula to
subcontract with another manufacturer to supply a soy-based infant formula under the contract. In this case,
the bid solicitation must require that
the winning bidder pay the State agency a rebate on the soy-based infant formula supplied by the subcontractor
that is issued by the State agency. The
bid solicitation must require all rebates (including those for soy-based infant formula supplied by a subcontractor) to be calculated in accordance
with paragraph (c)(6) of this section.
All of these infant formulas are called
contract brand infant formulas.
(ii) Separate solicitations. Under the
separate solicitation system, a State
agency issues two bid solicitations.
Any State agency or alliance that
served a monthly average of more than
100,000 infants during the preceding 12month period shall issue separate bid
solicitations for milk-based and soybased infant formula. The first solicitation must require the winning bidder
to supply and provide a rebate on all
milk-based infant formulas it produces
that the State agency chooses to issue,
except exempt infant formulas. Rebates must also be paid on any new
milk-based infant formulas that are introduced by the manufacturer after the
contract is awarded. These infant formulas are considered to be contract
brand infant formulas. The second bid
solicitation must require the winning
bidder to supply and provide a rebate
on all soy-based infant formulas it produces that the State agency chooses to
issue. Rebates must also be paid on any
new soy-based infant formulas that are
introduced by the manufacturer after
the contract is awarded. These infant
formulas are also considered to be contract brand infant formulas.
(3) What is the size limitation for a
State alliance? A State alliance may
exist among State agencies if the total
number of infants served by States participating in the alliance as of October
1, 2003, or such subsequent date determined by the Secretary for which data
is available, does not exceed 100,000.
However, a State alliance that existed
as of July 1, 2004, and serves over
100,000 infants may exceed this limit to
include any State agency that served
less than 5,000 infants as of October 1,
2003, or such subsequent date determined by the Secretary for which data
is available, and/or any Indian State
agency. The bid solicitation must identify the composition of the State alliances for the purpose of a cost containment measure, and verify that no additional State shall be added to the State
alliance between the date of the bid solicitation and the end of the contract.
The Secretary may waive these requirements not earlier than 30 days
after submitting to the Committee on
Education and the Workforce of the
House of Representatives and the Committee on Agriculture, Nutrition, and
Forestry of the Senate a written report
that describes the cost-containment
and competitive benefits of the proposed waiver.
(4) On what types and physical forms of
infant formula must bids be solicited? The
bid solicitation must require bidders to
specify a rebate for each of the types
and physical forms of infant formulas
specified in the following chart. These
rebates apply proportionally to other
infant formulas produced by the winning bidder(s) (see paragraph (c)(6) of
this section).
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Food and Nutrition Service, USDA
§ 246.16a
Physical forms of infant
formula
Type of infant formula
Infant formula requirements
(i) For a single solicitation, the solicitation must require bidders to specify a rebate amount for the following:
A single milk-based infant formula (primary contract infant formula); bidders must specify the
brand name of the milk-based infant formula for
which the rebate is being specified.
Concentrated liquid,
powdered, and readyto-feed.
Meets requirements under § 246.10(e)(1)(iii) and
§ 246.10(e)(2)(iii) and suitable for routine
issuance to the majority of generally healthy,
full-term infants.
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(ii) For separate solicitations, the solicitation must require bidders to specify a rebate amount for the following:
(A) A single milk-based infant formula (primary
milk-based contract brand infant formula); bidders must specify the brand name of the milkbased infant formula for which the rebate is
being specified.
Concentrated liquid,
powdered, and readyto-feed.
Meets requirements under § 246.10(e)(1)(iii) and
§ 246.10(e)(2)(iii) and suitable for routine
issuance to the majority of generally healthy,
full-term infants.
(B) A single soy-based infant formula (primary
soy-based contract brand infant formula); bidders must specify the brand name of the soybased infant formula for which the rebate is
being specified.
Concentrated liquid,
powdered, and readyto-feed.
Meets requirements under § 246.10(e)(1)(iii) and
§ 246.10(e)(2)(iii).
(5) How are contracts awarded? A
State agency must award the contract(s) to the responsive and responsible bidder(s) offering the lowest total
monthly net price for infant formula or
the highest monthly rebate (subject to
paragraph (c)(4)(ii) of this section) for a
standardized number of units of infant
formula. The State agency must calculate the lowest net price using the
lowest national wholesale cost per unit
for a full truckload of the infant formula on the date of the bid opening.
(i) Calculating the standardized number
of units of infant formula. The State
agency must specify a standardized
number of units (e.g., cans) of infant
formula by physical form (e.g., concentrated liquid, powdered, and readyto-feed) to be bid upon. The standardized number of units must contain the
equivalent of the total number of
ounces by physical form needed to give
the maximum allowance to the average
monthly number of infants using each
form. The number of infants does not
include infant participants who are exclusively breastfed and those who are
issued exempt infant formula. The average monthly number of infant using
each physical form must be based on at
least 6 months of the most recent participation and issuance data. In order
to calculate the standardized number
of units of infant formula by form to be
bid upon, the average monthly number
of infants using each physical form is
multiplied by the maximum monthly
allowable number of ounces for each
form
(as
allowed
under
§ 246.10(e)(9)(Table1)), and divided by
the corresponding unit size (i.e., number of ounces per unit being bid). In
order to compare bids, total cost is calculated by multiplying this standardized number of units by the net price
for each physical form. Alternative calculations that arrive at a mathematically equivalent result are acceptable.
(ii) Determining the lowest total monthly net price or highest rebate. To determine the lowest total monthly net
price a State agency must multiply the
net price per unit by the established
standardized amount of infant formula
to be bid upon as calculated in paragraph (c)(4)(i) of this section. If the bid
evaluation is based on highest rebate
offered, the State agency must multiply the rebate offered by the established amount of infant formula to be
bid upon as calculated in paragraph
(c)(4)(i) of this section.
(iii) Highest rebate limitation. Before
issuing the bid solicitation, a State
agency that elects to evaluate bids by
highest rebate must demonstrate to
FNS’ satisfaction that the weighted average retail prices for different brands
of infant formula in the State vary by
5 percent or less. The weighted average
retail price must take into account the
prices charged for each type and physical form of infant formula by authorized vendors or, if a State agency
elects, it may include stores that do
not participate in the WIC program in
the State. The State agency must also
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§ 246.16a
7 CFR Ch. II (1–1–18 Edition)
base calculations on the proportion of
each type and physical form of infant
formula the State agency issues based
on the data provided to bidders pursuant to paragraph (c)(5) of this section.
(6) What data must be provided to bidders? The State agency must provide as
part of the bid solicitation the participation and infant formula usage data
and the standardized number of ounces
by physical form of infant formula to
be used in evaluating bids as described
in paragraph (c)(4) of this section. The
State agency must notify bidders that
the participation and infant formula
usage data does not necessarily reflect
the actual issuance and redemption
that will occur under the contract.
(7) How is the rebate to be calculated on
all other contract brand infant formulas?
All bids must specify the rebates offered by each bidder for the primary
contract infant formula(s). After the
contract is awarded, the State agency
must calculate the percentage discount
for all other contract brand infant formulas (i.e., all other infant formulas
produced by the bidder other than exempt infant formulas) approved for
issuance by the State agency. The
State agency must use the following
method in calculating the rebates:
(i) Calculation of percentage discounts.
Rebates for contract brand infant formulas, other than the primary contract infant formula(s) for which bids
were received, must be calculated by
first determining the percentage discount for each physical form (e.g., concentrated liquid, powdered, and readyto-feed) of the primary contract infant
formula(s). The percentage discount
must be calculated by dividing the rebate for the primary contract infant
formula by the manufacturer’s lowest
national wholesale price per unit, as of
the date of the bid opening, for a full
truckload of the primary contract infant formula. The percentage discounts
must be used to determine the rebate
for all other contract brand infant formulas approved for issuance by the
State agency.
(ii) Calculation of rebate amount. The
rebate for each type and form of all
other contract brand infant formulas
must be calculated by multiplying the
percentage discount by the manufacturer’s lowest national wholesale price
per unit, as of the date of the bid opening, for a full truckload of the other
contract brand infant formula. The
percentage discount used for each of
the other contract brand infant formulas depends on the physical form of
the infant formula. For example, if the
percentage discount provided for the
primary contract brand powdered infant formula is 80 percent of its wholesale price, the same percentage discount must be applied to all other contract brand powdered infant formulas.
The rebate for any types or forms of
contract brand infant formulas that
are introduced during the contract period must be calculated using the
wholesale prices of these new contract
brand infant formulas at the time the
infant formulas are approved for
issuance by the State agency.
(iii) Calculation of rebates during contract term. The rebates resulting from
the application of the percentage discount must remain the same throughout the contract period except for the
cent-for-cent rebate adjustments required in paragraph (c)(6)(iv) of this
section.
(iv) Cent-for-cent rebate adjustments.
Bid solicitations must require the manufacturer to adjust rebates for price
changes subsequent to the bid opening.
Price adjustments must reflect any increase and decrease, on a cent-for-cent
basis, in the manufacturer’s lowest national wholesale prices for a full truckload of infant formula.
(8) What is the first choice of issuance
for infant formula? The State agency
must use the primary contract infant
formula(s) as the first choice of
issuance (by physical form), with all
other infant formulas issued as an alternative (see § 246.10(e)(1)(iii)).
(9) Under what circumstances may the
State agency issue other contract brand
formulas? Except as required in paragraph (c)(7) of this section, the State
agency may choose to approve for
issuance some, none, or all of the winning bidder’s other infant formula(s).
In addition, the State agency may require medical documentation before
issuing any contract brand infant formula, except as provided in paragraph
(c)(7) of this section (see § 246.10(c)(1)(i))
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Food and Nutrition Service, USDA
§ 246.16a
and must require medical documentation before issuing any WIC formula
covered by § 246.10(c)(1)(iii).
(d) What is an alternative cost containment system? Under an alternative cost
containment system, a State agency
elects to implement an infant formula
cost containment system of its choice.
The State agency may only implement
an alternative system if such a system
provides a savings equal to or greater
than a single-supplier competitive system. A State agency must conduct a
cost comparison demonstrating such
savings as described in paragraphs
(d)(1) and (d)(2) of this section.
(1) How must the State agency structure
the bid solicitation? The State agency
must solicit bids simultaneously using
the single-supplier competitive system
described in paragraph (c) of this section and the alternative cost containment system(s) the State agency has
selected. The State agency may prescribe standards of its choice for the alternative cost containment system(s),
provided that conditions established
for each system addressed in the bid solicitation include identical bid specifications for the contract period length
and the types and forms of infant formula(s) to be included in the systems.
In addition, the alternative cost containment system must cover the types
and forms of infant formulas routinely
issued to the majority of generally
healthy, full-term infants. The State
agency must use the procedure outlined in paragraph (d)(2) of this section
in conducting a cost comparison to determine which system offers the greatest savings over the entire contract period specified in the bid solicitation.
(2) How does the State agency conduct
the cost comparison? (i) Establishing infant formula cost containment savings.
(A) Savings under the single-supplier
competitive system. The State agency
must project food cost savings in the
single-supplier
competitive
system
based on the lowest monthly net price
or highest monthly rebate, as described
in paragraph (c)(4) of this section.
(B) Savings under an alternative cost
containment system. The State agency
must project food cost savings under
alternative cost containment systems
based on the lowest monthly net cost
or highest monthly rebate, as described
in paragraph (c)(4) of this section. Food
cost savings must be based on the
standardized amount of infant formula
expected to be issued as calculated for
a single-supplier competitive system,
prorated by the percentage of anticipated total infant formula purchases
attributable to each manufacturer. The
State agency must use the aggregate
market share of the manufacturers
submitting bids in calculating its cost
savings estimate.
(C) General. In establishing the potential food cost savings under each system, the State agency must take into
consideration in its estimate of savings
any inflation factors which would affect the amount of savings over the life
of the contract. Further, the State
agency must not subtract any loss of
payments which would occur under the
terms of a current contract as a result
of any State agency action to be effective after expiration of the contract.
(ii) Nutrition services and administration cost adjustment. The State agency
must deduct from the food cost savings
projected for each system under this
paragraph (d) the nutrition services
and administration costs associated
with developing and implementing—
but not operating—each cost containment system. This includes any anticipated costs for modifying its automated data processing system or components of its food delivery system(s),
and of training participants, local
agencies, vendors, and licensed health
care professionals on the purpose and
procedures of the new system. For contracts of two years or less, such costs
must be proportionately distributed
over at least a two year period. The
State agency must not deduct any
costs associated with procurement. The
State agency must itemize and justify
all nutrition services and administration cost adjustments as necessary and
reasonable for the development and implementation of each system.
(iii) Final cost comparison. The State
agency must calculate the food costs
savings and deduct the appropriate nutrition services and administration
costs for each system for which bids
were received. The State agency must
implement the single-supplier competitive system, unless its comparative
cost analysis shows that, over the
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§ 246.16a
7 CFR Ch. II (1–1–18 Edition)
length of the contract stipulated in the
bid solicitation, an alternative cost
containment system offers savings at
least equal to, or greater than, those
under the competitive single-supplier
system. If the comparative cost analysis permits selection of the alternative cost containment system and
the State agency wishes to implement
that system, it must first submit a
State Plan amendment with the calculations and supporting documentation for this cost analysis to FNS for
approval. Only after the calculations
are approved by FNS may the State
agency award the contract or contracts
under the alternative cost containment
system.
(e) How does a State agency request a
waiver of the requirement for a singlesupplier competitive system? A State
agency which, after completing the
cost comparison in paragraphs (d)(2)(i)
through (d)(2)(iii) of this section, is required to implement the single-supplier competitive cost containment
system for infant formula procurement, may request a waiver from FNS
to permit it to implement an alternative system. State agencies must
support all waiver requests with documentation in the form of a State Plan
amendment
as
required
under
§ 246.4(a)(14)(x) and may submit such requests only in either of the following
circumstances:
(1) The difference between the singlesupplier competitive system and the
alternative cost containment system is
less than 3 percent of the savings anticipated under the latter system and
not more than $100,000 per annum.
(2) The single-supplier competitive
system would be inconsistent with the
efficient or effective operation of the
program. Examples of justifications
FNS will not accept for a waiver, include, but are not limited to: preservation of participant preference for otherwise nutritionally equivalent infant
formulas; maintenance of health care
professionals’ prerogatives to prescribe
otherwise nutritionally equivalent infant formulas for non-medical reasons;
potential loss of free or otherwise discounted materials to WIC clinics and
other health care facilities; potential
inability of a manufacturer selected in
accordance with applicable State pro-
curement procedures to supply contractually-specified amounts of infant
formula; and the possibility of interrupted infant formula supplies to retail
outlets as a consequence of entering
into a contract with a single manufacturer.
(f) How does a State agency request a
postponement of the requirement for a
continuously operated cost containment
system for infant formula? A State agency may request a postponement of the
requirement to continuously operate a
cost containment system for infant formula that has been implemented in accordance with this section. However, a
State agency may only request a postponement when it has taken timely
and responsible action to implement a
cost containment system before its
current system expires but has been
unable to do so due to procurement
delays, disputes with FNS concerning
cost containment issues during the
State Plan approval process or other
circumstances beyond its control. The
written postponement request must be
submitted to FNS before the expiration
of the current system. The postponement period may be no longer than 120
days. If a postponement is granted, the
State agency may extend, renew or
otherwise continue an existing system
during the period of the postponement.
(g) May a State agency implement cost
containment systems for other supplemental foods? Yes, when a State agency
finds that it is practicable and feasible
to implement a cost containment system for any WIC food other than infant
formula. The State agency must:
(1) Provide notification to FNS by
means of the State agency’s State
Plan.
(2) Comply with paragraphs (c)(2) and
(k) of this section.
(3) Provide a minimum of 30 days between the publication of the solicitation and the date on which the bids are
due, unless exempted by the Secretary.
The State must publicly open and read
all bids aloud on the day the bids are
due.
(4) Issue separate solicitations for authorized foods if any alliance served a
monthly average of more than 100,000
infants during the preceding 12-month
period.
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Food and Nutrition Service, USDA
§ 246.16a
(h) What are the implementation time
frames for Indian State agencies that lose
their exemption from the infant formula
cost containment requirement? If an Indian State agency operating a retail
food delivery system expands its program participation above 1000 and
thereby loses its exemption from the
requirements of paragraph (a) of this
section regarding the method of cost
containment for infant formula, then
the Indian State agency must begin
compliance with paragraph (a) of this
section in accordance with time frames
established by FNS.
(i) What are the penalties for failure to
comply with the cost containment requirements? Any State agency that FNS determines to be out of compliance with
the cost containment requirements of
this part must not draw down on or obligate any Program grant funds, nor
will FNS make any further Program
funds available to such State agency,
until it is in compliance with these requirements.
(j) What provisions are prohibited to be
included in cost containment contracts? A
State agency may not issue bid solicitations or enter into contracts which:
(1) Prescribe conditions that would
void, reduce the savings under or otherwise limit the original contract if
the State agency solicited or secured
bids for, or entered into, a subsequent
cost containment contract to take effect after the expiration of the original
contract;
(2) Does not include the registration
and certification requirements in
§ 246.10(g);
(3) Require infant formula manufacturers to submit bids on more than one
of the systems specified in the invitation for bids; or
(4) Require infant formula manufacturers to provide gratis infant formula
or other items.
(k) What are the requirements for infant formula and authorized food rebate
invoices? A State agency must have a
system in place that ensures infant formula and authorized food rebate invoices, under competitive bidding, provide a reasonable estimate or an actual
count of the number of units purchased
by participants in the program.
(l) What are the requirements for the
national cost containment bid solicitation
and selection for infant formula? FNS
will solicit and select bids for infant
formula rebates on behalf of State
agencies with retail food delivery systems based on the following guidelines:
(1) FNS will solicit bids and select
the winning bidder(s) for infant formula cost containment contracts only
if two or more State agencies with retail food delivery systems request FNS
to conduct bid solicitation and selection on their behalf. FNS will conduct
the bid solicitation and selection process only and will not award or enter
into any infant formula cost containment contract on behalf of the individual State agencies. Each State
agency will individually award and
enter into infant formula cost containment contract(s) with the winning bidder(s). State agencies must obtain the
rebates directly from the infant formula manufacturer(s). FNS will conduct the bid solicitation in accordance
with this paragraph (l) and the competitive bidding procurement procedures of the State agency with the
highest infant participation in the bid
group on whose behalf bids are being
solicited. Any bid protests and contractual disputes are the responsibility of
the individual State agencies to resolve.
(2) FNS will make a written offer to
all State agencies to conduct bid solicitation and selection on their behalf at
least once every 12 months. FNS will
send State agencies a copy of the draft
Request for Rebates when making the
offer to State agencies. Only State
agencies that provide the information
required by this paragraph (l)(2) in
writing, signed by a responsible State
agency official, by certified mail, return receipt requested or by hand delivery with evidence of receipt within
15 days of receipt of the offer will be included in the national bid solicitation
and selection process. Each interested
State agency must provide:
(i) A statement that the State agency requests FNS to conduct bid solicitation and selection on its behalf;
(ii) A statement of the State agency’s
minimum procurement procedures applicable to competitive bidding (as defined in § 246.2) for infant formula cost
containment contracts and supporting
documentation;
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§ 246.16a
7 CFR Ch. II (1–1–18 Edition)
(iii) A statement of any limitation on
the duration of infant formula cost
containment contracts and supporting
documentation;
(iv) A statement of any contractual
provisions required to be included in
infant formula cost containment contracts by the State agency;
(v) The most recent available average
monthly number of infant participants
less those infant participants who are
exclusively breastfed and those who are
issued exempt infant formula. The average monthly participation level must
be based on at least 6 months of participation data.
(vi) Infant formula usage rates by
type (e.g., milk-based or soy-based),
form (e.g., concentrated, powdered,
ready-to-feed), container size, and supporting documentation;
(vii) A statement of the termination
date of the State agency’s current infant formula cost containment contract; and
(viii) Any other related information
that FNS may request.
(3) If FNS determines that the number of State agencies making the request provided for in paragraph (l)(2) of
this section does not comply with the
requirements of paragraph (c)(2) of this
section, FNS shall, in consultation
with such State agencies, divide such
State agencies into more than one
group and solicit bids for each group.
These groups of State agencies are referred to as ‘‘bid groups.’’ In determining the size and composition of the
bid groups, FNS will, to the extent
practicable, take into account the need
to maximize the number of potential
bidders so as to increase competition
among infant formula manufacturers
and the similarities in the State agencies’ procurement and contract requirements (as provided by the State
agencies in accordance with paragraphs
(l)(2)(ii), (l)(2)(iii), and (l)(2)(iv) of this
section). FNS reserves the right to exclude a State agency from the national
bid solicitation and selection process if
FNS determines that the State agency’s procurement requirements or contractual requirements are so dissimilar
from those of the other State agencies
in any bid group that the State agency’s inclusion in the bid group could
adversely affect the bids.
(4) For each bid group formed pursuant to paragraphs (l)(2) and (l)(3) of this
section, FNS will use for soliciting bids
the competitive bidding procurement
procedures of the State agency in the
group with the highest infant participation. To the extent not inconsistent
with the requirements of this paragraph (l), FNS will use that set of procedures in soliciting the bids for that
bid group of State agencies. FNS will
notify each State agency in the bid
group of the choice and provide them
each a copy of the procurement procedures of the chosen State agency. Each
State agency must provide FNS a written statement, signed by a responsible
State agency official, by certified mail,
return receipt requested or by hand delivery with evidence of receipt stating
whether that State agency is legally
authorized to award an infant formula
cost containment contract pursuant to
that set of procedures within 10 days of
the receipt of the notification. If the
State agency determines it is not legally authorized to award an infant
formula cost containment contract
pursuant to those procedures, that
State agency may not continue in that
round of the national bid solicitation
and selection.
(5) At a minimum, in soliciting bids
FNS will address the following:
(i) Unless FNS determines that doing
so would not be in the best interest of
the Program, bids will be solicited for
either:
(A) A single contract for each State
agency under which the winning bidder
will be required to supply and provide
rebates on all infant formulas produced
by that manufacturer (except exempt
infant formulas) that are issued by the
State agency. If that manufacturer
does not produce a soy-based infant
formula, the winning bidder will be required to subcontract with another
manufacturer for a soy-based infant
formula and the winning bidder will be
required to pay a rebate on the soybased infant formula; or
(B) Two separate contracts for each
State agency. Under the first contract,
the winning bidder will supply and provide a rebate on all the milk-based infant formulas the winning bidder produces (except exempt infant formulas)
that are issued by the State agency
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Food and Nutrition Service, USDA
§ 246.16a
and under the second contract the winning bidder will supply and provide a
rebate on all the soy-based infant formulas the winning bidder produces (except exempt infant formulas) that are
issued by the State agency.
(ii) The infant formula cost containment contract(s) to be entered into by
the State agencies and infant formula
manufacturers must provide for a constant net price for infant formula for
the full term of the infant formula cost
containment contract(s).
(iii) The duration of the infant formula cost containment contracts for
each bid group will be determined by
FNS in consultation with the State
agencies. The term will be for a period
of not less than 2 years, unless the law
applicable to a State agency regarding
the duration of infant formula cost
containment contracts is more restrictive than this paragraph (l)(5)(iii). In
such cases, the term of the contract for
only that State agency will be for one
year, with the option provided to the
State agency to extend the contract for
a specified number of additional years
(to be determined by FNS in consultation with the State agency). The date
on which the individual State agencies’
current infant formula cost containment contracts terminate may vary, so
the infant formula cost containment
contracts awarded by the State agencies within a bid group may begin on
different dates.
(iv) FNS will not prescribe conditions
that are prohibited under paragraph (j)
of this section.
(v) FNS will solicit bids for rebates
only from infant formula manufacturers. FNS may limit advertising to contacting in writing each infant formula
manufacturer which has registered
with the Secretary of Health and
Human Services under the Federal
Food, Drug, and Cosmetic Act (21
U.S.C. 321 et seq.).
(6) FNS will select the winning bidder(s). The winning bidder(s) will be
the responsive and responsible bidder(s) meeting the specifications and
all bid terms and conditions which offers the lowest net price weighted to
take into account infant formula usage
rates and infant participation. In all
instances the winning bidder(s) will be
those which singly or in combination
yield the greatest aggregate savings
based on the net price weighted to take
into account the infant formula usage
rates. To break a tie between 2 equally
low bids, FNS will select the bidder to
be awarded the infant formula cost
containment contract by a drawing by
lot limited to the bidders which submitted those bids.
(7) Once FNS has conducted bid selection, a State agency may decline to
award the infant formula cost containment contract(s) only if the State
agency determines that awarding the
contract(s) would not be in the best interests of its Program, taking into account whether the national bid solicitation and selection would achieve a
lower aggregate savings.
(8) As soon as practicable after selecting the winning bid(s), FNS will notify the affected State agencies in writing of the bid results, including the
name(s) of the winning bidder(s). If a
State agency chooses to request approval to decline to award the infant
formula cost containment contract(s)
in accordance with paragraph (l)(7) of
this section, it must notify FNS in
writing, signed by a responsible State
agency official, together with supporting documentation, by certified
mail, return receipt requested or by
hand delivery with evidence of receipt
within 10 days of the State agency’s receipt of this notification of bid results.
(9) If FNS approves any State agency’s request to decline to award the infant formula cost containment contract(s) in accordance with paragraphs
(l)(7) and (l)(8) of this section, FNS will
notify the bidders of the decision. If
two or more State agencies remain in
the group, FNS will require the bidders
to indicate in writing whether they
wish to withdraw or modify their bids
within 5 days of receipt of this notification. FNS will again permit State
agencies to decline to award the infant
formula cost containment contract(s)
in accordance with paragraphs (l)(7)
and (l)(8) of this section. If FNS approves these additional State agency
requests to decline contract awards,
FNS may conduct a resolicitation of
bids in accordance with this paragraph
(l).
(m) What are the penalties for disclosing the amount of the bid or discount
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§ 246.17
7 CFR Ch. II (1–1–18 Edition)
practices prior to the time bids are
opened? Any person, company, corporation, or other legal entity that submits
a bid in response to a bid solicitation
and discloses the amount of the bid, or
the rebate or discount practices of such
entities, in advance of the time the
bids are opened by the Secretary or the
State agency, shall be ineligible to submit bids to supply infant formula to
the program for the bidding in progress
for up to 2 years from the date the bids
are opened. In addition, any person,
company, corporation, or other legal
entity shall be subject to a civil money
penalty as specified in § 3.91(b)(3)(iv) of
this title, as determined by the Secretary to provide restitution to the
program for harm done to the program.
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[65 FR 51224, Aug. 23, 2000, as amended at 73
FR 11313, Mar. 3, 2008; 73 FR 21811, Apr. 23,
2008; 76 FR 59889, Sept. 28, 2011]
§ 246.17 Closeout procedures.
(a) General. State agencies shall submit preliminary and final closeout reports for each fiscal year. All obligations shall be liquidated before closure
of a fiscal year grant. Obligations shall
be reported for the fiscal year in which
they occur.
(b) Fiscal year closeout reports. State
agencies—
(1) Shall submit to FNS, within 30
days after the end of the fiscal year,
preliminary financial reports which
show cumulative actual expenditures
and obligations for the fiscal year, or
part thereof, for which Program funds
were made available;
(2) Shall submit to FNS, within 120
days after the end of the fiscal year,
final fiscal year closeout reports;
(3) May submit revised closeout reports. FNS will reimburse State agencies for additional costs claimed in a
revised closeout report up to the
State’s original grant level, if costs are
properly justified and if funds are
available for the fiscal year pertaining
to the request. FNS will not be responsible for reimbursing State agencies for
unreported expenditures later than one
year after the end of the fiscal year in
which they were incurred.
(c) Grant closeout procedures. When
grants to State agencies are terminated, the following procedures shall
be performed in accordance with 2 CFR
part 200, subpart D and USDA implementing regulations 2 CFR part 400 and
part 415.
(1) FNS may disqualify a State agency’s participation under the Program,
in whole or in part, or take such remedies as may be legal and appropriate,
whenever FNS determines that the
State agency failed to comply with the
conditions prescribed in this part, in
its Federal-State Agreement, or in
FNS guidelines and instructions. FNS
will promptly notify the State agency
in writing of the disqualification together with the effective date. A State
agency shall disqualify a local agency
by written notice whenever it is determined by FNS or the State agency that
the local agency has failed to comply
with the requirements of the Program.
(2) FNS or the State agency may disqualify the State agency or restrict its
participation in the Program when
both parties agree that continuation
under the Program would not produce
beneficial results commensurate with
the further expenditure of funds. The
State agency or the local agency may
disqualify the local agency or restrict
its participation in the Program under
the same conditions. The two parties
shall agree upon the conditions of disqualification, including the effective
date thereof, and, in the case of partial
disqualification, the portion to be disqualified.
(3) Upon termination of a grant, the
affected agency shall not incur new obligations for the disqualified portion
after the effective date, and shall cancel as many outstanding obligations as
possible. FNS will allow full credit to
the State agency for the Federal share
of the noncancellable obligations properly incurred by the State agency prior
to disqualification, and the State agency shall do the same for the local agency.
(4) A grant closeout shall not affect
the retention period for, or Federal
rights of access to, grant records as
specified in § 246.25. The closeout of a
grant does not affect the State or local
agency’s
responsibilities
regarding
property or with respect to any Program income for which the State or
local agency is still accountable.
(5) A final audit is not a required part
of the grant closeout and should not be
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Food and Nutrition Service, USDA
§ 246.18
needed unless there are problems with
the grant that require attention. If
FNS considers a final audit to be necessary, it shall so inform OIG. OIG will
be resonsible for ensuring that necessary final audits are performed and
for any necessary coordination with
other Federal cognizant audit agencies
or the State or local auditors. Audits
performed in accordance with § 246.20
may serve as final audits providing
such audits meet the needs of requesting agencies. If the grant is closed out
without the audit, FNS reserves the
right to disallow and recover an appropriate amount after fully considering
any recommended disallowances resulting from an audit which may be
conducted later.
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[50 FR 6121, Feb. 13, 1985, as amended at 71
FR 56731, Sept. 27, 2006; 81 FR 66494, Sept. 28,
2016]
§ 246.18 Administrative review of State
agency actions.
(a) Adverse actions subject to administrative reviews—(1) Vendor appeals—(i)
Adverse actions subject to full administrative reviews. Except as provided elsewhere in paragraph (a)(1) of this section, the State agency must provide
full administrative reviews to vendors
that appeal the following adverse actions:
(A) Denial of authorization based on
the application of the vendor selection
criteria for minimum variety and
quantity of authorized supplemental
foods (§ 246.12(g)(3)(i)), or on a determination that the vendor is attempting
to circumvent a sanction (§ 246.12(g)(6));
(B) Termination of an agreement for
cause;
(C) Disqualification; and
(D) Imposition of a fine or a civil
money penalty in lieu of disqualification.
(ii) Adverse actions subject to abbreviated administrative reviews. The State
agency must provide abbreviated administrative reviews to vendors that
appeal the following adverse actions,
unless the State agency decides to provide full administrative reviews for
any of these types of adverse actions:
(A) Denial of authorization based on
the vendor selection criteria for business integrity or for a current SNAP
disqualification or civil money penalty
for
hardship
(§ 246.12(g)(3)(ii)
and
(g)(3)(iii));
(B) Denial of authorization based on
the application of the vendor selection
criteria
for
competitive
price
(§ 246.12(g)(4));
(C) The application of the State
agency’s vendor peer group criteria and
the criteria used to identify vendors
that are above-50-percent vendors or
comparable to above-50-percent vendors;
(D) Denial of authorization based on
a State agency-established vendor selection criterion if the basis of the denial is a WIC vendor sanction or a
SNAP withdrawal of authorization or
disqualification;
(E) Denial of authorization based on
the State agency’s vendor limiting criteria (§ 246.12(g)(2));
(F) Denial of authorization because a
vendor submitted its application outside the timeframes during which applications are being accepted and processed as established by the State agency under § 246.12(g)(8);
(G) Termination of an agreement because of a change in ownership or location
or
cessation
of
operations
(§ 246.12(h)(3)(xvii));
(H) Disqualification based on a trafficking conviction (§ 246.12(l)(1)(i));
(I) Disqualification based on the imposition of a SNAP civil money penalty
for hardship (§ 246.12(l)(2)(ii)); and
(J) Disqualification or a civil money
penalty imposed in lieu of disqualification based on a mandatory sanction
imposed by another WIC State agency
(§ 246.12(l)(2)(iii)).
(K) A civil money penalty imposed in
lieu of disqualification based on a
SNAP
disqualification
under
§ 246.12(l)(1)(vii) and,
(L) Denial of an application based on
a determination of whether an applicant vendor is currently authorized by
SNAP.
(iii) Actions not subject to administrative reviews. The State agency may not
provide administrative reviews pursuant to this section to vendors that appeal the following actions:
(A) The validity or appropriateness of
the State agency’s vendor limiting criteria (§ 246.12(g)(2)) or vendor selection
criteria for minimum variety and
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§ 246.18
7 CFR Ch. II (1–1–18 Edition)
quantity of supplemental foods, business integrity, and current Supplemental Nutrition Assistance Program
disqualification or civil money penalty
for hardship (§ 246.12(g)(3));
(B) The validity or appropriateness of
the State agency’s selection criteria
for competitive price (§ 246.12(g)(4)), including, but not limited to, vendor peer
group criteria and the criteria used to
identify vendors that are above-50-percent vendors or comparable to above50-percent vendors;
(C) The validity or appropriateness of
the State agency’s participant access
criteria and the State agency’s participant access determinations;
(D) The State agency’s determination
to include or exclude an infant formula
manufacturer, wholesaler, distributor,
or retailer from the list required pursuant to § 246.12(g)(11);
(E) The validity or appropriateness of
the State agency’s prohibition of incentive items and the State agency’s
denial of an above-50-percent vendor’s
request to provide an incentive item to
customers pursuant to § 246.12(h)(8);
(F) The State agency’s determination
whether to notify a vendor in writing
when an investigation reveals an initial violation for which a pattern of
violations must be established in order
to impose a sanction, pursuant to
§ 246.12(l)(3);
(G) The State agency’s determination
whether a vendor had an effective policy and program in effect to prevent
trafficking and that the ownership of
the vendor was not aware of, did not
approve of, and was not involved in the
conduct
of
the
violation
(§ 246.12(l)(1)(i)(B));
(H) Denial of authorization if the
State agency’s vendor authorization is
subject to the procurement procedures
applicable to the State agency;
(I) The expiration of a vendor’s agreement;
(J) Disputes regarding food instrument or cash-value voucher payments
and vendor claims (other than the opportunity to justify or correct a vendor
overcharge or other error, as permitted
by § 246.12(k)(3); and
(K) Disqualification of a vendor as a
result of disqualification from SNAP
(§ 246.12(l)(1)(vii)).
(2) Effective date of adverse actions
against vendors. The State agency must
make denials of authorization and disqualifications
imposed
under
§ 246.12(l)(1)(i) effective on the date of
receipt of the notice of adverse action.
The State agency must make all other
adverse actions effective no earlier
than 15 days after the date of the notice of the adverse action and no later
than 90 days after the date of the notice of adverse action or, in the case of
an adverse action that is subject to administrative review, no later than the
date the vendor receives the review decision.
(3) Local agency appeals—(i) Adverse
actions subject to full administrative reviews. Except as provided in paragraph
(a)(3)(ii) of this section, the State agency must provide full administrative reviews to local agencies that appeal the
following adverse actions:
(A) Denial of a local agency’s application;
(B) Disqualification of a local agency; and
(C) Any other adverse action that affects a local agency’s participation.
(ii) Actions not subject to administrative reviews. The State agency may not
provide administrative reviews pursuant to this section to local agencies
that appeal the following actions:
(A) Expiration of the local agency’s
agreement; and
(B) Denial of a local agency’s application if the State agency’s local agency
selection is subject to the procurement
procedures applicable to the State
agency;
(iii) Effective date of adverse actions
against local agencies. The State agency
must make denials of local agency applications effective immediately. The
State agency must make all other adverse actions effective no earlier than
60 days after the date of the notice of
the adverse action and no later than 90
days after the date of the notice of adverse action or, in the case of an adverse action that is subject to administrative review, no later than the date
the local agency receives the review
decision.
(4) Farmer or farmers’ market appeals—
(i) Adverse actions. The State agency
shall provide a hearing procedure
whereby farmers or farmers’ markets
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Food and Nutrition Service, USDA
§ 246.18
adversely affected by certain actions of
the State agency may appeal those actions. A farmer or farmers’ market
may appeal an action of the State
agency denying its application to participate, imposing a sanction, or disqualifying it from participation in the
program. Expiration of an agreement is
not subject to appeal.
(ii) Effective date of adverse actions
against farmers or farmers’ markets. The
State agency must make denials of authorization and disqualifications effective on the date of receipt of the notice
of adverse action. The State agency
must make all other adverse actions effective no earlier than 15 days after the
date of the notice of the adverse action
and no later than 90 days after the date
of the notice of adverse action or, in
the case of an adverse action that is
subject to administrative review, no
later than the date the farmer receives
the review decision. The State agency
must make all other adverse actions effective no earlier than 15 days after the
date of the notice of adverse action and
no later than 90 days after the date of
the notice of adverse action or, in the
case of an adverse action that is subject to an administrative review, no
later than the date the farmer or farmers’ market receives the review decision.
(b) Full administrative review procedures. The State agency must develop
procedures for a full administrative review of the adverse actions listed in
paragraphs (a)(1)(i), (a)(3) and (a)(4) of
this section. At a minimum, these procedures must provide the vendor, farmer or farmers’ market or local agency
with the following:
(1) Written notification of the adverse action, the procedures to follow
to obtain a full administrative review
and the cause(s) for and the effective
date of the action. When a vendor is
disqualified due in whole or in part to
violations in § 246.12(l)(1), such notification must include the following statement: ‘‘This disqualification from WIC
may result in disqualification as a retailer in SNAP. Such disqualification
is not subject to administrative or judicial review under SNAP.’’
(2) The opportunity to appeal the adverse action within a time period speci-
fied by the State agency in its notification of adverse action.
(3) Adequate advance notice of the
time and place of the administrative
review to provide all parties involved
sufficient time to prepare for the review.
(4) The opportunity to present its
case and at least one opportunity to reschedule the administrative review
date upon specific request. The State
agency may set standards on how many
review dates can be scheduled, provided
that a minimum of two review dates is
allowed.
(5) The opportunity to cross-examine
adverse witnesses. When necessary to
protect the identity of WIC Program
investigators, such examination may
be conducted behind a protective
screen or other device (also referred to
as an ‘‘in camera’’ examination).
(6) The opportunity to be represented
by counsel.
(7) The opportunity to examine prior
to the review the evidence upon which
the State agency’s action is based.
(8) An impartial decision-maker,
whose determination is based solely on
whether the State agency has correctly
applied Federal and State statutes,
regulations, policies, and procedures
governing the Program, according to
the evidence presented at the review.
The State agency may appoint a reviewing official, such as a chief hearing
officer or judicial officer, to review appeal decisions to ensure that they conform to approved policies and procedures.
(9) Written notification of the review
decision, including the basis for the decision, within 90 days from the date of
receipt of the request for an administrative review from a vendor, farmer,
or farmer’s market, and within 60 days
from the date of receipt of a local agency’s request for an administrative review. These timeframes are only administrative requirements for the
State agency and do not provide a basis
for overturning the State agency’s adverse action if a decision is not made
within the specified timeframe.
(c) Abbreviated administrative review
procedures. Except when the State
agency decides to provide full administrative reviews for the adverse actions
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§ 246.19
7 CFR Ch. II (1–1–18 Edition)
listed in paragraph (a)(1)(ii) of this section, the State agency must develop
procedures for an abbreviated administrative review of the adverse actions
listed in paragraph (a)(1)(ii) of this section. At a minimum, these procedures
must provide the vendor, farmer, or
farmers’ market with the following:
(1) Written notification of the adverse action, the procedures to follow
to obtain an abbreviated administrative review, the cause(s) for and the effective date of the action, and an opportunity to provide a written response; and
(2) A decision-maker who is someone
other than the person who rendered the
initial decision on the action and
whose determination is based solely on
whether the State agency has correctly
applied Federal and State statutes,
regulations, policies, and procedures
governing the Program, according to
the information provided to the vendor, farmer, or farmers’ market concerning the cause(s) for the adverse action and the response from the vendor,
farmer, or farmers’ market.
(3) Written notification of the review
decision, including the basis for the decision, within 90 days of the date of receipt of the request for an administrative review. This timeframe is only an
administrative requirement for the
State agency and does not provide a
basis for overturning the State agency’s adverse action if a decision is not
made within the specified timeframe.
(d) Continuing responsibilities. Appealing an action does not relieve a local
agency, farmer or farmers’ market or
vendor that is permitted to continue
program operations while its appeal is
in process from the responsibility of
continued compliance with the terms
of any written agreement with the
State agency.
(e) Finality and effective date of decisions. The State agency procedures
must provide that review decisions rendered under both the full and abbreviated review procedures are the final
State agency action. If the adverse action under review has not already
taken effect, the State agency must
make the action effective on the date
of receipt of the review decision by the
vendor, farmer or farmers’ market or
local agency.
(f) Judicial review. If the review decision upholds the adverse action against
the vendor, farmer or farmers’ market
or local agency, the State agency must
inform the vendor, farmer or farmers’
market or local agency that it may be
able to pursue judicial review of the decision.
[65 FR 83266, Dec. 29, 2000, as amended at 70
FR 71724, Nov. 29, 2005; 73 FR 68998, Dec. 6,
2007; 73 FR 21811, Apr. 23, 2008; 74 FR 557, Jan.
6, 2009; 74 FR 51759, Oct. 8, 2009; 79 FR 12300,
Mar. 4, 2014]
Subpart F—Monitoring and Review
§ 246.19 Management evaluation and
monitoring reviews.
(a) Management evaluations and reviews. (1) FNS and each State agency
shall establish a management evaluation system in order to assess the accomplishment of Program objectives as
provided under this part, FNS guidelines, instructions, and the FederalState agreement with the Department.
FNS will provide assistance to States
in discharging this responsibility, establish standards and procedures to determine how well the objectives of this
part are being accomplished, and implement sanction procedures as warranted by State Program performance.
(2) The State agency must submit a
corrective action plan, including implementation timeframes, within 60
days of receipt of an FNS management
evaluation report containing a finding
that the State agency did not comply
with program requirements. If FNS determines through a management evaluation or other means that during a
fiscal year the State agency has failed,
without good cause, to demonstrate efficient and effective administration of
its program, or has failed to comply
with its corrective action plan, or any
other requirements contained in this
part or the State Plan, FNS may withhold an amount up to 100 percent of the
State agency’s nutrition services and
administration funds for that year.
(3) Sanctions imposed upon a State
agency by FNS in accordance with this
section (but not claims for repayment
assessed against a State agency) may
be appealed in accordance with the procedures established in § 246.22. Before
carrying out any sanction against a
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Food and Nutrition Service, USDA
§ 246.19
State agency, the following procedures
will be followed:
(i) FNS will notify the Chief State
Health Officer or equivalent in writing
of the deficiencies found and of FNS’
intention to withhold nutrition services and administration funds unless an
acceptable corrective action plan is
submitted by the State agency to FNS
within 60 days after mailing of notification.
(ii) The State agency shall develop a
corrective action plan with a schedule
according to which the State agency
shall accomplish various actions to
correct the deficiencies and prevent
their future recurrence.
(iii) If the corrective action plan is
acceptable, FNS will notify the Chief
State Health Officer or equivalent in
writing within 30 days of receipt of the
plan. The letter approving the corrective action plan will describe the technical assistance that is available to the
State agency to correct the deficiencies. The letter will also advise the
Chief State Health Officer or equivalent of the sanctions to be imposed if
the corrective action plan is not implemented according to the schedule set
forth in the approved plan.
(iv) Upon notification from the State
agency that corrective action as been
taken, FNS will assess such action,
and, if necessary, will perform a followup review to determine if the noted deficiencies have been corrected. FNS
will then advise the State agency of
whether the actions taken are in compliance with the corrective action plan,
and whether the deficiency is resolved
or further corrective action is needed.
(v) If an acceptable corrective action
plan is not submitted within 60 days, or
if corrective action is not completed
according to the schedule established
in the corrective action plan, FNS may
withhold nutrition services and administration funds through a reduction of
the State agency Letter of Credit or by
assessing a claim against the State
agency. FNS will notify the Chief State
Health Officer or equivalent of this action.
(vi) If compliance is achieved before
the end of the fiscal year in which the
nutrition services and administration
funds are withheld, the funds withheld
shall be restored to the State agency’s
Letter of Credit. FNS is not required to
restore funds withheld if compliance is
not achieved until the subsequent fiscal year. If the 60-day warning period
ends in the fourth quarter of a fiscal
year, FNS may elect not to withhold
funds until the next fiscal year.
(b) State agency responsibilities. (1) The
State agency shall establish an ongoing management evaluation system
which includes at least the monitoring
of local agency operations, the review
of local agency financial and participation reports, the development of corrective action plans to resolve Program
deficiencies, the monitoring of the implementation of corrective action
plans, and on-site visits. The results of
such actions shall be documented.
(2) Monitoring of local agencies must
encompass evaluation of management,
certification,
nutrition
education,
breastfeeding promotion and support,
participant services, civil rights compliance, accountability, financial management systems, and food delivery
systems. If the State agency delegates
the signing of vendor agreements, vendor training, or vendor monitoring to a
local agency, it must evaluate the
local agency’s effectiveness in carrying
out these responsibilities.
(3) The State agency shall conduct
monitoring reviews of each local agency at least once every two years. Such
reviews shall include on-site reviews of
a minimum of 20 percent of the clinics
in each local agency or one clinic,
whichever is greater. The State agency
may conduct such additional on-site
reviews as the State agency determines
to be necessary in the interest of the
efficiency and effectiveness of the program.
(4) The State agency must promptly
notify a local agency of any finding in
a monitoring review that the local
agency did not comply with program
requirements. The State agency must
require the local agency to submit a
corrective action plan, including implementation timeframes, within 60
days of receipt of a State agency report
of a monitoring review containing a
finding of program noncompliance. The
State agency must monitor local agency implementation of corrective action
plans.
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§ 246.20
7 CFR Ch. II (1–1–18 Edition)
(5) As part of the regular monitoring
reviews, FNS may require the State
agency to conduct in-depth reviews of
specified areas of local agency operations, to implement a standard form
or protocol for such reviews, and to report the results to FNS. No more than
two such areas will be stipulated by
FNS for any fiscal year and the areas
will not be added or changed more
often than once every two fiscal years.
These areas will be announced by FNS
at least six months before the beginning of the fiscal year.
(6) The State agency shall require
local agencies to establish management evaluation systems to review
their operations and those of associated clinics or contractors.
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[50 FR 6121, Feb. 13, 1985, as amended at 59
FR 11508, Mar. 11, 1994; 76 FR 59890, Sept. 28,
2011]
§ 246.20 Audits.
(a) Federal audit responsibilities. (1)
OIG reserves the right to perform audits of State and local agencies and
other organizations involved in the
Program as determined by OIG to be
necessary. In performing such audits,
OIG will rely to the extent feasible on
audit work performed by other Federal
and non-Federal auditors.
(2) The State agency may take exception to particular audit findings and
recommendations. The State agency
shall submit a response or statement
to FNS as to the action taken or a proposed corrective action plan regarding
the findings. A proposed corrective action plan developed and submitted by
the State agency shall include specific
timeframes for its implementation and
for completion of correction of deficiencies and their causes.
(3) FNS will determine whether Program deficiencies have been adequately
corrected. If additional corrective action is necessary, FNS shall schedule a
follow-up review, allowing a reasonable
time for such corrective action to be
taken.
(b) State audit responsibilities. (1) State
agencies must obtain annual audits in
accordance with part 3052 of this title.
In addition, States must require local
agencies under their jurisdiction to obtain audits in accordance with 2 CFR
part 200, subpart F and Appendix XI,
Compliance Supplement and USDA implementing regulations 2 CFR part 400
and part 415.
(2) Each State agency shall make all
State or local agency sponsored audit
reports of Program operations under
its jurisdiction available for the Department’s review upon request. The
cost of these audits shall be considered
a part of nutrition services and administration costs and may be funded from
the State or local agency nutrition
services and administration funds, as
appropriate. For purposes of determining the Program’s pro rata share of
indirect costs associated with organization-wide audits, the cost of food shall
not be considered in the total dollar
amount of the Program.
[50 FR 6121, Feb. 13, 1985, as amended at 71
FR 56731, Sept. 27, 2006; 81 FR 66494, Sept. 28,
2016]
§ 246.21
Investigations.
(a) Authority. The Department may
make an investigation of any allegation of noncompliance with this part
and FNS guidelines and instructions.
The investigation may include, where
appropriate, a review of pertinent practices and policies of any State or local
agency, the circumstances under which
the possible noncompliance with this
part occurred, and other factors relevant to a determination as to whether
the State or local agency has failed to
comply with the requirements of this
part.
(b) Confidentiality. No State or local
agency, participant, or other person
shall intimidate, threaten, coerce, or
discriminate against any individual for
the purpose of interfering with any
right or privilege under this part because that person has made a complaint or formal allegation, or has testified, assisted, or participated in any
manner in an investigation, proceeding, or hearing under this part.
The identity of every complainant
shall be kept confidential except to the
extent necessary to carry out the purposes of this part, including the conducting of any investigation, hearing,
or judicial proceeding.
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Food and Nutrition Service, USDA
§ 246.23
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Subpart G—Miscellaneous
Provisions
§ 246.22 Administrative appeal of FNS
decisions.
(a) Right to appeal. When FNS asserts
a sanction against a State agency
under the provisions of § 246.19, the
State agency may appeal and must be
afforded a hearing or review by an FNS
Administrative Review Officer. The
right of appeal shall not apply to
claims for repayment assessed by FNS
against the State agency under
§ 246.23(a). A State agency shall have
the option of requesting a hearing to
present its position or a review of pertinent documents and records including any additional written submission
prepared by the State agency.
(1) FNS will send a written notice by
Certified Mail-Return Receipt Requested to the state agency or otherwise ensure receipt of such notice by
the agency when asserting a sanction
against a State agency as specified in
§ 246.19(a).
(2) A State agency aggrieved by a
sanction asserted against it may file a
written request with the Director, Administrative Review Division, U.S. Department of Agriculture, Food and Nutrition Service, 3101 Park Center Drive,
Alexandria, Va. 22302, for a hearing or a
review of the record. Such request shall
be sent by Certified Mail-Return Receipt Requested and postmarked within
30 days of the date of receipt of the
sanction notice. The envelope containing the request shall be prominently marked ‘‘REQUEST FOR REVIEW OR HEARING.’’ The request
shall clearly identify the specific FNS
sanction(s) being appealed and shall include a photocopy of the FNS notice of
sanction. If the State agency does not
request a review of hearing within 30
days of receipt of the notice, the administrative decision on the sanctions
will be considered final.
(b) Acknowledgment of request. Within
15 days of receipt by the Director of the
Administrative Review Division of a
request for review or hearing, the Director will provide the State agency
with a written acknowledgment of the
request.
(1) The acknowledgment will include
the name and address of the FNS Ad-
ministrative Review Officer to review
the sanction;
(2) The acknowledgment will also notify the State agency that within 30
days of the receipt of the acknowledgment, the State agency shall submit
three sets of the following information
to the Administrative Review Officer—
(i) A clear, concise identification of
the issue(s) in dispute;
(ii) The State agency’s position with
respect to the issue(s) in dispute;
(iii) The pertinent facts and reasons
in support of the State agency’s position with respect to the issue(s) in dispute and a copy of the specific sanction
notice provided by FNS;
(iv) All pertinent documents, correspondence and records which the
State agency believes are relevant and
helpful toward a more thorough understanding of the issue(s) in dispute;
(v) The relief sought by the State
agency;
(vi) The identity of the person(s) presenting the State agency’s position
when a hearing is involved; and
(vii) A list of prospective State agency witnesses when a hearing is involved.
(c) FNS action. (1) When a hearing is
requested pursuant to this section, the
Administrative Review Officer will,
within 60 days after receipt of the
State agency’s information, schedule
and conduct the hearing. The State
agency will be advised of the time, date
and location of the hearing at least 10
days in advance.
(2) When a hearing is requested, the
FNS Administrative Review Officer
will make a final determination within
30 days after the hearing, and the final
determination will take effect upon delivery of the written notice of this final
decision to the State agency.
(3) When a review is requested, the
FNS Administrative Review Officer
will review information presented by a
State agency and will make a final determination within 30 days after receipt of that information. The final determination will take effect upon delivery of the written notice of this final
decision to the State agency.
§ 246.23 Claims and penalties.
(a) Claims against State agencies. (1) If
FNS determines through a review of
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§ 246.23
7 CFR Ch. II (1–1–18 Edition)
the State agency’s reports, program or
financial analysis, monitoring, audit,
or otherwise, that any Program funds
provided to a State agency for supplemental foods or nutrition services and
administration purposes were, through
State or local agency negligence or
fraud, misused or otherwise diverted
from Program purposes, a formal claim
will be assessed by FNS against the
State agency. The State agency shall
pay promptly to FNS a sum equal to
the amount of the nutrition services
and administration funds or the value
of supplemental foods food instruments, or cash-value vouchers so misused or diverted.
(2) If FNS determines that any part
of the Program funds received by a
State agency; or supplemental foods,
either purchased or donated commodities; or food instruments or cash-value
vouchers, were lost as a result of
thefts, embezzlements, or unexplained
causes, the State agency shall, on demand by FNS, pay to FNS a sum equal
to the amount of the money or the
value of the supplemental foods, food
instruments, or cash-value vouchers so
lost.
(3) The State agency shall have full
opportunity to submit evidence, explanation or information concerning alleged instances of noncompliance or diversion before a final determination is
made in such cases.
(4) FNS will establish a claim against
any State agency that has not accounted for the disposition of all redeemed food instruments and cashvalue vouchers and taken appropriate
follow-up action on all redeemed food
instruments and cash-value vouchers
that cannot be matched against valid
enrollment and issuance records, including cases that may involve fraud,
unless the State agency has demonstrated to the satisfaction of FNS
that it has:
(i) Made every reasonable effort to
comply with this requirement;
(ii) Identified the reasons for its inability to account for the disposition of
each redeemed food instrument or
cash-value voucher; and
(iii) Provided assurances that, to the
extent considered necessary by FNS, it
will take appropriate actions to improve its procedures.
(b) Interest charge on claims against
State agencies. If an agreement cannot
be reached with the State agency for
payment of its debts or for offset of
debts on its current Letter of Credit
within 30 days from the date of the
first demand letter from FNS, FNS will
assess an interest (late) charge against
the State agency. Interest accrual
shall begin on the 31st day after the
date of the first demand letter, bill or
claim, and shall be computed monthly
on any unpaid balance as long as the
debt exists. From a source other than
the Program, the State agency shall
provide the funds necessary to maintain Program operations at the grant
level authorized by FNS.
(c) Claims—(1) Claims against participants. (i) Procedures. If the State agency determines that program benefits
have been obtained or disposed of improperly as the result of a participant
violation, the State agency must establish a claim against the participant for
the full value of such benefits. For all
claims, the State agency must issue a
letter demanding repayment. If full
restitution is not made or a repayment
schedule is not agreed on within 30
days of receipt of the letter, the State
agency must take additional collection
actions until restitution is made or a
repayment schedule is agreed on, unless the State agency determines that
further collection actions would not be
cost-effective. The State agency must
establish standards, based on a cost
benefit analysis, for determining when
collection actions are no longer costeffective. At the time the State agency
issues the demand letter, the State
agency must advise the participant of
the procedures to follow to obtain a
fair hearing pursuant to § 246.9 and that
failure to pay the claim may result in
disqualification. In addition to establishing a claim, the State agency must
determine whether disqualification is
required by § 246.12(u)(2).
(ii) Types of restitution. In lieu of financial restitution, the State agency
may allow participants or parents or
caretakers of infant or child participants for whom financial restitution
would cause undue hardship to provide
restitution by performing in-kind services determined by the State agency.
Restitution may not include offsetting
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Food and Nutrition Service, USDA
§ 246.24
the claim against future program benefits, even if agreed to by the participant or the parent or caretaker of an
infant or child participant.
(iii) Disposition of claims. The State
agency must document the disposition
of all participant claims.
(2) Claims against the State agency.
FNS will assert a claim against the
State agency for losses resulting from
program funds improperly spent as a
result of dual participation, if FNS determines that the State agency has not
complied with the requirements in
§ 246.7(l)(1).
(3) Delegation of claims responsibility.
The State agency may delegate to its
local agencies the responsibility for
collecting participant claims.
(d) Penalties. In accordance with section 12(g) of the National School Lunch
Act, whoever embezzles, willfully
misapplies, steals or obtains by fraud
any funds, assets or property provided
under section 17 of the Child Nutrition
Act of 1966, as amended, whether received directly or indirectly from
USDA, or whoever receives, conceals or
retains such funds, assets or property
for his or her own interest, knowing
such funds, assets or property have
been embezzled, willfully misapplied,
stolen, or obtained by fraud shall, if
such funds, assets or property are of
the value of $100 or more, be fined not
more than $25,000 or imprisoned not
more than five years, or both, or if
such funds, assets or property are of a
value of less than $100, shall be fined
not more than $1,000 or imprisoned for
not more than one year, or both.
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[50 FR 6121, Feb. 13, 1985, as amended at 52
FR 21238, June 4, 1987; 65 FR 83288, Dec. 29,
2000; 71 FR 56731, Sept. 27, 2006; 72 FR 68998,
Dec. 6, 2007; 79 FR 12300, Mar. 4, 2014]
§ 246.24 Procurement and property
management.
(a) Requirements. State and local
agencies shall ensure that subgrantees
comply with the requirements for the
nonprocurement debarment/suspension
requirements and, if applicable, the
lobbying restrictions as required in 2
CFR part 180, OMB Guidelines to Agencies on Government-wide Debarment
and Suspension, 2 CFR part 200, subpart E and USDA implementing regulations 2 CFR part 400, part 415, and part
417 concerning the procurement and allowability of food in bulk lots, supplies, equipment and other services
with Program funds. These requirements are adopted to ensure that such
materials and services are obtained for
the Program in an effective manner
and in compliance with the provisions
of applicable law and executive orders.
(b) Contractual responsibilities. The
standards contained in A–130 and 2 CFR
part 200, subpart D and Appendix II,
Contract Provisions for Non-Federal
Entity
Contracts
Under
Federal
Awards and USDA implementing regulations 2 CFR part 400 and part 415 do
not relieve the State or local agency of
the responsibilities arising under its
contracts. The State agency is the responsible authority, without recourse
to FNS, regarding the settlement and
satisfaction of all contractual and administrative issues arising out of procurements entered into in connection
with the Program. This includes, but is
not limited to, disputes, claims, protests of award, source evaluation, or
other matters of a contractual nature.
Matters concerning violation of law are
to be referred to such local, State or
Federal authority as may have proper
jurisdiction.
(c) State regulations. The State or
local agency may use its own procurement regulations which reflect applicable State and local regulations, provided that procurements made with
Program funds adhere to the standards
set forth in A–130 and 2 CFR part 200,
subpart D and Appendix II, Contract
Provisions for Non-Federal Entity Contracts Under Federal Awards and
USDA implementing regulations 2 CFR
part 400 and part 415.
(d) Property acquired with Program
funds. State and local agencies shall
observe the standards prescribed in 2
CFR part 200, subpart D and USDA implementing regulations 2 CFR part 400
and part 415 in their utilization and
disposition of real property and equipment, including automated data processing equipment, acquired in whole or
in part with Program funds.
[50 FR 6121, Feb. 13, 1985, as amended at 59
FR 11508, Mar. 11, 1994; 81 FR 66494, 66495,
Sept. 28, 2016]
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§ 246.25
7 CFR Ch. II (1–1–18 Edition)
§ 246.25 Records and reports.
(a) Recordkeeping requirements. Each
State and local agency shall maintain
full and complete records concerning
Program operations. Such records shall
comply with 2 CFR part 200, subpart D
and USDA implementing regulations 2
CFR part 400 and part 415 and the following requirements:
(1) Records shall include, but not be
limited to, information pertaining to
financial operations, food delivery systems, food instrument issuance and redemption, equipment purchases and inventory, certification, nutrition education, including breastfeeding promotion and support, civil rights and
fair hearing procedures.
(2) All records shall be retained for a
minimum of three years following the
date of submission of the final expenditure report for the period to which the
report pertains. If any litigation,
claim, negotiation, audit or other action involving the records has been
started before the end of the three-year
period, the records shall be kept until
all issues are resolved, or until the end
of the regular three-year period, whichever is later. If FNS deems any of the
Program records to be of historical interest, it may require the State or
local agency to forward such records to
FNS whenever either agency is disposing of them.
(3) Records for nonexpendable property acquired in whole or in part with
Program funds shall be retained for
three years after its final disposition.
(4) All records shall be available during normal business hours for representatives of the Department and the
Comptroller General of the United
States to inspect, audit, and copy. Any
reports or other documents resulting
from the examination of such records
that are publicly released may not include confidential applicant or participant information.
(b) Financial and participation reports—(1) Monthly reports. (i) State
agencies must submit financial and
program performance data on a monthly basis, as specified by FNS, to support program management and funding
decisions. Such information must include, but may not be limited to:
(A) Actual and projected participation;
(B) Actual and projected food funds
expenditures;
(C) Actual and projected rebate payments received from manufacturers.
(D) A listing by source year of food
and NSA funds available for expenditure; and,
(E) NSA expenditures and unliquidated obligations.
(ii) State agencies must require local
agencies to report such financial and
participation information as is necessary for the efficient management of
food and NSA funds expenditures.
(2) Annual reports. (i) Every year,
State agencies must report to FNS the
average number of migrant farmworker
household members participating in
the Program during a 12-month period
of time specified by FNS.
(ii) State agencies must submit
itemized NSA expenditure reports annually as an addendum to their WIC
Program closeout reports, as required
by § 246.17(b)(2).
(iii) The State agency must submit
local agency breastfeeding participation data on an annual basis to FNS.
(3) Biennial reports. (i) Participant
characteristics report. State and local
agencies must provide such information as may be required by FNS to provide a biennial participant characteristics report. This includes, at a minimum, information on income and nutritional risk characteristics of participants, information on breastfeeding incidence and duration, and participation
in the Program by category (i.e., pregnant, breastfeeding and postpartum
women, infants and children) within
each priority level (as established in
§ 246.7(e)(4)) and by migrant farmworker households.
(ii) Civil rights report. Racial and ethnic participation data contained in the
biennial participant characteristics report will also be used to fulfill civil
rights reporting requirements.
(c) Other reports. State agencies must
submit reports to reflect additions and
deletions of local agencies administering the WIC Program and local
agency address changes as these events
occur.
(d) Source documentation. To be acceptable for audit purposes, all financial and Program performance reports
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Food and Nutrition Service, USDA
§ 246.26
shall be traceable to source documentation.
(e) Certification of reports. Financial
and Program reports shall be certified
as to their completeness and accuracy
by the person given that responsibility
by the State agency.
(f) Use of reports. FNS will use State
agency reports to measure progress in
achieving objectives set forth in the
State Plan, and this part, or other
State agency performance plans. If it is
determined, through review of State
agency reports, Program or financial
analysis, or an audit, that a State
agency is not meeting the objectives
set forth in its State Plan, FNS may
request additional information including, but not limited to, reasons for failure to achieve its objectives.
(g) Extension of reporting deadline.
FNS may extend the due date for any
Financial and Participation Report
upon receiving a justified request from
the State agency. The State agency
should not wait until the due date if an
extension is to be requested, but should
submit the request as soon as the need
is known. Failure by a State agency to
submit a report by its due date may result in appropriate enforcement actions by FNS in accordance with
§ 246.19(a)(2), including withholding of
further grant payments, suspension or
termination of the grant.
[50 FR 6121, Feb. 13, 1985, as amended at 52
FR 21238, June 4, 1987; 53 FR 15653, May 3,
1988; 59 FR 11508, Mar. 11, 1994; 65 FR 53528,
Sept. 5, 2000; 71 FR 56731, Sept. 27, 2006; 72 FR
24183, May 2, 2007; 76 FR 59890, Sept. 27, 2011;
81 FR 66494, Sept. 28, 2016]
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§ 246.26
Other provisions.
(a) No aid reduction. The value of benefits or assistance available under the
Program shall not be considered as income or resources of participants or
their families for any purpose under
Federal, State, or local laws, including,
but not limited to, laws relating to
taxation, welfare and public assistance
programs.
(b) Statistical information. FNS reserves the right to use information obtained under the Program in a summary, statistical or other form which
does not identify particular individuals.
(c) Medical information. FNS may require the State or local agencies to
supply medical data and other information collected under the Program in a
form that does not identify particular
individuals, to enable the Secretary or
the State agencies to evaluate the effect of food intervention upon low-income individuals determined to be at
nutritional risk.
(d) Confidentiality of applicant and
participant information—(1) WIC purposes. (i) Confidential applicant and
participant information is any information about an applicant or participant, whether it is obtained from the
applicant or participant, another
source, or generated as a result of WIC
application, certification, or participation, that individually identifies an applicant or participant and/or family
member(s). Applicant or participant information is confidential, regardless of
the original source and exclusive of
previously applicable confidentiality
provided in accordance with other Federal, State or local law.
(ii) Except as otherwise permitted by
this section, the State agency must restrict the use and disclosure of confidential applicant and participant information to persons directly connected with the administration or enforcement of the WIC Program whom
the State agency determine have a
need to know the information for WIC
Program purposes. These persons may
include, but are not limited to: personnel from its local agencies and
other WIC State or local agencies; persons under contract with the State
agency to perform research regarding
the WIC Program, and persons investigating or prosecuting WIC Program
violations under Federal, State or local
law.
(2) Non-WIC purposes. (i) Use by WIC
State and local agencies. Any WIC State
or local agency may use confidential
applicant and participant information
in the administration of its other programs that serve persons eligible for
the WIC Program in accordance with
paragraph (h) of this section.
(ii) Disclosure to public organizations.
The State agency and its local agencies
may disclose confidential applicant
and participant information to public
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§ 246.26
7 CFR Ch. II (1–1–18 Edition)
organizations for use in the administration of their programs that serve
persons eligible for the WIC Program
in accordance with paragraph (h) of
this section.
(3) Child abuse and neglect reporting.
Staff of the State agency and its local
agencies who are required by State law
to report known or suspected child
abuse or neglect may disclose confidential applicant and participant information without the consent of the participant or applicant to the extent necessary to comply with such law.
(4) Release forms. Except in the case of
subpoenas or search warrants (see
paragraph (i) of this section), the State
agency and its local agencies may disclose confidential applicant and participant information to individuals or entities not listed in this section only if
the affected applicant or participant
signs a release form authorizing the
disclosure and specifying the parties to
which the information may be disclosed. The State or local agency must
permit applicants and participants to
refuse to sign the release form and
must notify the applicants and participants that signing the form is not a
condition of eligibility and refusing to
sign the form will not affect the applicant’s or participant’s application or
participation in the WIC Program. Release forms authorizing disclosure to
private physicians or other health care
providers may be included as part of
the WIC application or certification
process. All other requests for applicants or participants to sign voluntary
release forms must occur after the application and certification process is
completed.
(5) Access to information by applicants
and participants. The State or local
agency must provide applicants and
participants access to all information
they have provided to the WIC Program. In the case of an applicant or
participant who is an infant or child,
the access may be provided to the parent or guardian of the infant or child,
assuming that any issues regarding
custody or guardianship have been settled. However, the State or local agency need not provide the applicant or
participant (or the parent or guardian
of an infant or child) access to any
other information in the file or record
such as documentation of income provided by third parties and staff assessments of the participant’s condition or
behavior, unless required by Federal,
State, or local law or policy or unless
the information supports a State or
local agency decision being appealed
pursuant to § 246.9.
(e) Confidentiality of vendor information. Confidential vendor information
is any information about a vendor
(whether it is obtained from the vendor
or another source) that individually
identifies the vendor, except for vendor’s name, address, telephone number,
Web site/e-mail address, store type, and
authorization status. Except as otherwise permitted by this section, the
State agency must restrict the use or
disclosure of confidential vendor information to:
(1) Persons directly connected with
the administration or enforcement of
the WIC Program or SNAP who the
State agency determines have a need
to know the information for purposes
of these programs. These persons may
include personnel from its local agencies and other WIC State and local
agencies and persons investigating or
prosecuting WIC or SNAP violations
under Federal, State, or local law;
(2) Persons directly connected with
the administration or enforcement of
any Federal or State law or local law
or ordinance. Prior to releasing the information to one of these parties (other
than a Federal agency), the State agency must enter into a written agreement with the requesting party specifying that such information may not
be used or redisclosed except for purposes directly connected to the administration or enforcement of a Federal,
or State law; and
(3) A vendor that is subject to an adverse action, including a claim, to the
extent that the confidential information concerns the vendor subject to the
adverse action and is related to the adverse action.
(4) At the discretion of the State
agency, all authorized vendors and vendor applicants regarding vendor sanctions which have been imposed, identifying only the vendor’s name, address,
length of the disqualification or
amount of the civil money penalty, and
a summary of the reason(s) for such
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Food and Nutrition Service, USDA
§ 246.26
sanction provided in the notice of adverse action. Such information may be
disclosed only following the exhaustion
of all administrative and judicial review, in which the State agency has
prevailed, regarding the sanction imposed on the subject vendor, or the
time period for requesting such review
has expired.
(f) Confidentiality of SNAP retailer information. Except as otherwise provided
in this section, the State agency must
restrict the use or disclosure of information about SNAP retailers obtained
from SNAP, including information provided pursuant to Section 9(c) of the
Food and Nutrition Act of 2008 (7 U.S.C.
2018(c)) and § 278.1(q) of this chapter, to
persons directly connected with the administration or enforcement of the
WIC Program.
(g) USDA and the Comptroller General.
The State agency must provide the Department and the Comptroller General
of the United States access to all WIC
Program records, including confidential vendor, applicant and participant
information, pursuant to § 246.25(a)(4).
(h) Requirements for use and disclosure
of confidential applicant and participant
information for non-WIC purposes. The
State or local agency must take the
following steps before using or disclosing confidential applicant or participant information for non-WIC purposes pursuant to paragraph (d)(2) of
this section.
(1) Designation by chief State health officer. The chief State health officer (or,
in the case of an Indian State agency,
the governing authority) must designate in writing the permitted nonWIC uses of the information and the
names of the organizations to which
such information may be disclosed.
(2) Notice to applicants and participants. The applicant or participant
must be notified either at the time of
application
(in
accordance
with
§ 246.7(i)(11)) or through a subsequent
notice that the chief State health officer (or, in the case of an Indian State
agency, the governing authority) may
authorize the use and disclosure of information about their participation in
the WIC Program for non-WIC purposes. This statement must also indicate that such information will be used
by State and local WIC agencies and
public organizations only in the administration of their programs that serve
persons eligible for the WIC Program.
(3) Written agreement and State plan.
The State or local agency disclosing
the information must enter into a written agreement with the other public
organization or, in the case of a nonWIC use by a State or local WIC agency, the unit of the State or local agency that will be using the information.
The State agency must also include in
its State plan, as specified in
§ 246.4(a)(24), a list of all organizations
(including units of the State agency or
local agencies) with which the State
agency or its local agencies has executed or intends to execute a written
agreement. The written agreement
must:
(i) Specify that the receiving organization may use the confidential applicant and participant information only
for:
(A) Establishing the eligibility of
WIC applicants or participants for the
programs that the organization administers;
(B) Conducting outreach to WIC applicants and participants for such programs;
(C) Enhancing the health, education,
or well-being of WIC applicants or participants who are currently enrolled in
such programs, including the reporting
of known or suspected child abuse or
neglect that is not otherwise required
by State law;
(D) Streamlining administrative procedures in order to minimize burdens
on staff, applicants, or participants in
either the receiving program or the
WIC Program; and/or
(E) Assessing and evaluating the responsiveness of a State’s health system
to participants’ health care needs and
health care outcomes; and
(ii) Contain the receiving organization’s assurance that it will not use the
information for any other purpose or
disclose the information to a third
party.
(i) Subpoenas and search warrants. The
State agency may disclose confidential
applicant, participant, or vendor information pursuant to a valid subpoena or
search warrant in accordance with the
following procedures:
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§ 246.27
7 CFR Ch. II (1–1–18 Edition)
(1) Subpoena procedures. In determining how to respond to a subpoena
duces tecum (i.e., a subpoena for documents) or other subpoena for confidential information, the State or local
agency must use the following procedures:
(i) Upon receiving the subpoena, immediately notify its State agency;
(ii) Consult with legal counsel for the
State or local agency and determine
whether the information requested is
in fact confidential and prohibited by
this section from being used or disclosed as stated in the subpoena;
(iii) If the State or local agency determines that the information is confidential and prohibited from being
used or disclosed as stated in the subpoena, attempt to quash the subpoena
unless the State or local agency determines that disclosing the confidential
information is in the best interest of
the Program. The determination to disclose confidential information without
attempting to quash the subpoena
should be made only infrequently; and,
(iv) If the State or local agency seeks
to quash the subpoena or decides that
disclosing the confidential information
is in the best interest of the Program,
inform the court or the receiving party
that this information is confidential
and seek to limit the disclosure by:
(A) Providing only the specific information requested in the subpoena and
no other information; and,
(B) Limiting to the greatest extent
possible the public access to the confidential information disclosed.
(2) Search warrant procedures. In responding to a search warrant for confidential information, the State or
local agency must use the following
procedures:
(i) Upon receiving the search warrant, immediately notify its State
agency;
(ii) Immediately notify legal counsel
for the State or local agency;
(iii) Comply with the search warrant;
and,
(iv) Inform the individual(s) serving
the search warrant that the information being sought is confidential and
seek to limit the disclosure by:
(A) Providing only the specific information requested in the search warrant
and no other information; and
(B) Limiting to the greatest extent
possible the public access to the confidential information disclosed.
(j) Data collection related to local agencies. (1) Each State agency must collect
data related to local agencies that have
an agreement with the State agency to
participate in the program for each of
Federal fiscal years 2006 through 2009,
including those local agencies that participated only for part of the fiscal
year. Such data shall include:
(i) The name of each local agency;
(ii) The city in which each local
agency was headquartered and the
name of the state;
(iii) The amount of funds provided to
the participating organization, i.e., the
amount of federal funds provided for
nutrition services and administration
to each participating local agency; and
(iv) The type of participating organization, e.g., government agency, educational institution, non-profit organization/secular, non-profit organization/
faith-based, and ‘‘other.’’
(2) On or before August 31, 2007, and
each subsequent year through 2010,
State agencies must report to FNS
data as specified in paragraph (j)(1) of
this section for the prior Federal fiscal
year. State agencies must submit this
data in a format designated by FNS.
(k) Program evaluations. State and
local WIC agencies and contractors
must cooperate in studies and evaluations conducted by or on behalf of the
Department, related to programs authorized under the Richard B. Russell
National School Lunch Act and the
Child Nutrition Act of 1966 (42 U.S.C.
1786).
[50 FR 6121, Feb. 13, 1985, as amended at 53
FR 35301, Sept. 13, 1988; 65 FR 83288, Dec. 29,
2000; 71 FR 56731, Sept. 27, 2006; 72 FR 24184,
May 2, 2007; 73 FR 21811, Apr. 23, 2008; 76 FR
37983, June 29, 2011]
§ 246.27 Program information.
Any person who wishes information,
assistance, records or other public material shall request such information
from the State agency, or from the
FNS Regional Office serving the appropriate State as listed below:
(a) Connecticut, Maine, Massachusetts, New Hampshire, New York,
Rhode Island, Vermont: U.S. Department of Agriculture, FNS, Northeast
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Food and Nutrition Service, USDA
Pt. 247
Region, 10 Causeway Street, room 501,
Boston, Massachusetts 02222–1066.
(b) Delaware, District of Columbia,
Maryland, New Jersey, Pennsylvania,
Puerto Rico, Virginia, Virgin Islands,
West Virginia: U.S. Department of Agriculture, FNS, Mid-Atlantic Region,
Mercer Corporate Park, 300 Corporate
Boulevard, Robbinsville, New Jersey
08691–1598.
(c) Alabama, Florida, Georgia, Kentucky, Mississippi, North Carolina,
South Carolina, Tennessee: U.S. Department of Agriculture, FNS, Southeast Region, 61 Forsyth Street, SW.,
room 8T36, Atlanta, Georgia 30303.
(d) Illinois, Indiana, Michigan, Minnesota, Ohio, Wisconsin: U.S. Department of Agriculture, FNS, Midwest Region, 77 West Jackson Boulevard—20th
Floor, Chicago, Illinois 60604–3507.
(e) Arkansas, Louisiana, New Mexico,
Oklahoma, Texas: U.S. Department of
Agriculture, FNS, Southwest Region,
1100 Commerce Street, room 5–C–30,
Dallas, Texas 75242.
(f) Colorado, Iowa, Kansas, Missouri,
Montana, Nebraska, North Dakota,
South Dakota, Utah, Wyoming: U.S.
Department of Agriculture, FNS,
Mountain Plains Region, 1244 Speer
Boulevard, suite 903, Denver, Colorado
80204.
(g) Alaska, American Samoa, Arizona, California, the Commonwealth of
the Northern Mariana Islands, Guam,
Hawaii, Idaho, Nevada, Oregon, Washington: U.S. Department of Agriculture, FNS, Western Region,90 Seventh Street, Suite #10–100, San Francisco, California 94103.
[50 FR 6121, Feb. 13, 1985; 50 FR 8098, Feb. 28,
1985, as amended at 59 FR 11508, Mar. 11, 1994;
71 FR 56733, Sept. 27, 2006; 73 FR 11314, Mar.
3, 2008]
kpayne on DSK54DXVN1OFR with $$_JOB
§ 246.28 OMB control numbers.
The following control numbers have
been assigned to the information collection requirements in 7 CFR part 246
by the Office of Management and Budget pursuant to the Paperwork Reduction Act of 1980, Pub. L. 96–511.
7 CFR part 246 section where requirements
are described
.4(a) (8), (9), (11) ...............................................
.5 ........................................................................
.6 ........................................................................
Current
OMB control
no.
0584–0386
0584–0043
0584–0043
7 CFR part 246 section where requirements
are described
Current
OMB control
no.
.7(a) ...................................................................
.7(e), (h), (j) .......................................................
.7(n) ...................................................................
.7(i) .....................................................................
.10 ......................................................................
.11(a)(3) .............................................................
.11(d) .................................................................
.12(f), (i), (i)(3), (j) ..............................................
.14(d)(1) .............................................................
.16(c) ..................................................................
.17(c)(1) .............................................................
.19 ......................................................................
.20(a) .................................................................
.25(a), (b) ...........................................................
0584–0386
0584–0043
0584–0386
0584–A536
0584–A536
0584–0386
0584–0043
0584–0043
0584–0043
0584–0043
0584–0043
0584–0043
0584–0043
0584–0043,
0584–0347
[50 FR 6121, Feb. 13, 1985, as amended at 53
FR 15653, May 3, 1988; 54 FR 51295, Dec. 14,
1989; 58 FR 11507, Feb. 26, 1993]
PART 247—COMMODITY
SUPPLEMENTAL FOOD PROGRAM
Sec.
247.1 Definitions.
247.2 The purpose and scope of CSFP.
247.3 Administering agencies.
247.4 Agreements.
247.5 State and local agency responsibilities.
247.6 State Plan.
247.7 Selection of local agencies.
247.8 Individuals applying to participate in
CSFP.
247.9 Eligibility requirements.
247.10 Distribution and use of CSFP commodities.
247.11 Applicants exceed caseload levels.
247.12 Rights and responsibilities.
247.13 Provisions for non-English or limitedEnglish speakers.
247.14 Other public assistance programs.
247.15 Notification of eligibility or ineligibility of applicant.
247.16 Certification period.
247.17 Notification of discontinuance of participant.
247.18 Nutrition education.
247.19 Dual participation.
247.20 Program violations.
247.21 Caseload assignment.
247.22 Allocation and disbursement of administrative funds to State agencies.
247.23 State provision of administrative
funds to local agencies.
247.24 Recovery and redistribution of caseload and administrative funds.
247.25 Allowable uses of administrative
funds and other funds.
247.26 Return of administrative funds.
247.27 Financial management.
247.28 Storage and inventory of commodities.
247.29 Reports and recordkeeping.
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| File Type | application/pdf |
| File Modified | 2018-03-09 |
| File Created | 2018-03-09 |