Kentucky Administrative Regulations › Title 902 - CABINET FOR HEALTH AND FAMILY SERVICES - DEPARTMENT FOR PUBLIC HEALTH › Chapter 18 - WIC Program › Section 902 KAR 18:071 - Participant access determination and civil money penalty

Current through Register Vol. 51, No. 1, July 1, 2024
RELATES TO: 194A.050, 194A.505, 194A.990,
				7
				C.F.R. Part 246, 278.6,
				21
				U.S.C. 802
NECESSITY, FUNCTION, AND CONFORMITY:
				42
				U.S.C. 1786 and 7 C.F.R. Part 246 provide for
				grants for state operation of the Special Supplemental Nutrition Program for
				Women, Infants and Children (WIC).
				KRS
				194A.050(1) authorizes the
				Cabinet for Health and Family Services to promulgate administrative regulations
				as necessary to qualify for the receipt of federal funds. This administrative
				regulation establishes procedures for WIC vendor disqualification including the
				participant access determination and civil money penalty.
Section 1. Participant Access Determination.
(1) Except for a violation specified in
			 902 KAR
			 18:061, Section 1(1)(h) and (i), prior to
			 disqualifying a vendor for a violation specified in
			 902 KAR
			 18:061, the state WIC agency shall determine if
			 disqualification of the vendor will result in inadequate participant
			 access.
(2) Mileage shall be
			 measured by automobile odometer or geomapping.
(3) The determination and documentation of
			 adequate participant access shall be made using the following criteria:
(a) The sanctioned vendor is located within:
1. A metropolitan area, as defined by the
			 U.S. Office of Management and Budget (OMB) Bulletin No. 13-01, and there is
			 another authorized vendor located within two (2) miles of the sanctioned
			 vendor; or
2. A nonmetropolitan
			 area and there is another authorized vendor located within seven (7) miles of
			 the sanctioned vendor;
(b) The sanctioned vendor has redeemed food
			 instruments for medical foods or exempt infant formula within thirty (30) days
			 preceding the date of the letter issuing the notice of disqualification, and
			 there is another authorized vendor within the designated mileage as defined in
			 paragraph (a) of this subsection who can supply the products which were
			 previously redeemed; and
(c) The
			 sanctioned vendor has redeemed food instruments from a minimum number of unique
			 customers within thirty (30) days preceding the date of the letter issuing the
			 notice of disqualification.
1. The following
			 shall be the minimum number of customers according to the vendor's peer group:
a. Class 1: forty (40) or more unique
			 customers;
b. Class 2: seventy-five
			 (75) or more unique customers;
c.
			 Class 3: 100 or more unique customers;
d. Class 4: 200 or more unique customers;
			 or
e. Class 5: 400 or more unique
			 customers.
2. If a
			 sanctioned vendor meets the criteria for unique customers, then the local
			 agency WIC coordinator or designee shall be consulted to determine if:
a. Conditions exist which would allow travel
			 using public transportation to another authorized WIC vendor within the
			 designated mileage in paragraph (a)1. of this subsection;
b. Crosswalks exist across multilane highways
			 or railroad tracks if another authorized WIC vendor is located in a
			 metropolitan area; or
c. Impassable
			 mountain or an unbridged river would prevent travel if another authorized WIC
			 vendor is located in a non-metropolitan area.
(4) If the WIC program determines
			 there is adequate participant access, retailers shall be afforded the
			 opportunity to submit written documentation providing evidence of the impact of
			 the adverse action on WIC participants.
(5) If inadequate participant access is
			 determined pursuant to subsection (3) of this section, a civil money penalty
			 shall be assessed for a violation listed in
			 902 KAR
			 18:061. The civil money penalty shall be calculated in
			 accordance with the procedures outlined in the Manual for Contracted WIC
			 Vendors incorporated by reference in
			 902 KAR
			 18:050.
(6) The written documentation shall be
			 received by the state WIC agency within fifteen (15) days from the date of
			 receipt of the state WIC agency notification of disqualification. If the
			 written documentation is not received within fifteen (15) days, further
			 consideration shall not be given to participant access.
(7) Upon receipt and the review of the
			 documentation, the WIC program shall send, within thirty (30) days, a written
			 summary of the participant access review to the vendor. The vendor may then
			 request a hearing in accordance with
			 902
			 KAR 18:081.