Virginia Administrative Code › Title 12 - HEALTH › Agency 5 - DEPARTMENT OF HEALTH › Chapter 195 - VIRGINIA WIC PROGRAM › Part III - Retailer Requirements › Section 12VAC5-195-670 - Full administrative review

Current through Register Vol. 40, No. 24, July 15, 2024
A. Authorized retailers and applicants shall
				  be offered an opportunity to request a full administrative review only for the
				  adverse action cited in subsection O of this section.
B. The retailer or applicant has 15 calendar
				  days from the date of receipt of the denial notice or the disqualification
				  letter, either by letter or an electronic format, to request a full
				  administrative review.
C. The
				  request for the full administrative review may be mailed by U.S. mail, sent by
				  facsimile transmission or sent via email to the state agency. If the request is
				  mailed, it must be postmarked within 15 calendar days from the date of receipt
				  of letter or electronic notification from the state agency, whichever comes
				  first.
D. The retailer or applicant
				  should indicate whether he intends to be represented by an attorney when the
				  full administrative review request is made. This does not preclude the retailer
				  or applicant from seeking legal counsel at any time. At least five days prior
				  to the scheduled full administrative review, the retailer or applicant must
				  provide the state agency with copies of any written information that it wishes
				  to use during the review and names of witnesses that it will call. Failure to
				  provide the state agency with these items may result in rescheduling the full
				  administrative review or the exclusion of documents and witnesses from the full
				  administrative review.
E. Within 30
				  days of receipt of the retailer's or applicant's request for a full
				  administrative review, after consulting with the retailer or applicant and the
				  adjudication officer, the state agency shall confirm a date, time, and place
				  for the review. For authorized retailers and applicants, the review shall be
				  scheduled to take place within 60 calendar days after the written request is
				  received by the state agency, unless otherwise agreed to by the
				  parties.
F. Failure to attend the
				  scheduled review shall lead to the retailer forfeiting the rights to any
				  further administrative reviews.
G.
				  The retailer or applicant will have one opportunity to reschedule the full
				  administrative review date or time. All requests to reschedule the review date
				  or time must be submitted in writing at least 24 hours before the scheduled
				  review date unless good cause can be shown as determined by the adjudication
				  officer. Rescheduled reviews shall take place within four weeks of the
				  originally scheduled date unless otherwise agreed to by the parties.
H. If the retailer representative is more
				  than 45 minutes late to the review, this shall be considered a "no show" unless
				  he can show good cause as determined by the adjudication officer.
I. A full administrative review shall be
				  conducted by an adjudication officer who is employed by the Virginia Department
				  of Health. The adjudication officer shall ensure that administrative actions
				  taken by the WIC Program are consistently and fairly applied and that those
				  administrative actions comply with established policies, procedures, and
				  federal and state statutes and regulations. A representative from the state
				  agency shall present its case to the adjudication officer and retailer or
				  applicant representative. Conversely, the retailer owner or designated
				  representative, which may include legal counsel, shall present its case to the
				  adjudication officer.
J. All full
				  administrative reviews shall be held in Richmond, Virginia.
K. After a full administrative review is
				  held, the state WIC director shall provide written notification of the
				  adjudication officer's decision, including the basis for the decision, to the
				  applicant or authorized retailer within 90 calendar days of the date of receipt
				  of the full administrative appeal review request, unless otherwise agreed to by
				  the parties involved. This notification will also be sent to the appropriate
				  USDA Food and Nutrition Services office.
L. Authorized retailers that are being
				  disqualified may continue to submit reimbursement requests until a decision has
				  been rendered by the adjudication officer. The adverse action effective date
				  shall be postponed by the state agency pending the outcome of the
				  review.
M. In accordance with
				  7 CFR
				  246.18, if an authorized retailer does not
				  request a full administrative review, then disqualification becomes effective
				  15 calendar days after the retailer receives the state agency's written
				  disqualification letter.
N. An
				  authorized retailer that is being retained in lieu of disqualification for a
				  state agency violation may elect to voluntarily withdraw from the WIC Program
				  rather than pay a mandated civil monetary penalty. If the retailer voluntarily
				  withdraws and does not pay the civil monetary penalty, then a disqualification
				  status shall be documented in the state agency's records. The disqualification
				  period may range from one to six years, depending on the type of sanctions and
				  violations documented by the state agency.
O. The state agency shall provide a full
				  administrative review to retailers or applicants, upon request, for the
				  following adverse actions pursuant to
				  7 CFR
				  246.18:
1.
				  Denial of authorization based on the application of the retailer selection
				  criteria for minimum variety and quantity of authorized supplemental foods or
				  on a determination that the retailer is attempting to circumvent a sanction (
				  7 CFR
				  246.12 );
2. Denial of authorization based upon the
				  retailer selection criteria for business integrity or for a current
				  Supplemental Nutrition Assistance Program disqualification or civil money
				  penalty for hardship (
				  7 CFR
				  246.12 );
3. Denial of authorization based on a state
				  agency established retailer selection criteria if the basis of the denial is a
				  WIC retailer sanction or a Supplemental Nutrition Assistance Program withdrawal
				  of authorization or disqualification;
4. Denial of authorization based on the state
				  agency's retailer limiting criteria (
				  7 CFR
				  246.12 );
5. Denial of authorization because a retailer
				  submitted its application outside the timeframes during which applications are
				  accepted or processed as established by the state agency under
				  7 CFR
				  246.12;
6. Termination of a retailer agreement
				  because of a change in ownership, location, or cessation of operations (
				  7 CFR
				  246.12 );
7. Termination of a retailer agreement for
				  cause;
8. Disqualification based on
				  a trafficking conviction (
				  7 CFR
				  246.12 );
9. Disqualification based on the imposition
				  of a Supplemental Nutrition Assistance Program civil monetary penalty for
				  hardship (
				  7 CFR
				  246.12 );
10. Disqualification or civil monetary
				  penalty imposed in lieu of disqualification based on a mandatory sanction
				  imposed by another WIC state agency (
				  7 CFR
				  246.12 );
11. Imposition of a fine or a civil monetary
				  penalty in lieu of disqualification;
12. Denial of authorization based on the
				  application of the retailer selection criteria for competitive price;
13. The application of the state agency's
				  retailer peer group criteria and the criteria used to identify retailers that
				  are above 50% retailers or comparable to above 50% retailers;
14. Denial of an application based on a
				  determination of whether an applicant retailer is currently authorized by the
				  Supplemental Nutrition Assistance Program;
15. A civil monetary penalty imposed in lieu
				  of disqualification based on a Supplemental Nutrition Assistance Program
				  disqualification under
				  7 CFR
				  246.12; and
16. Disqualification unless listed in
				  subsection P of this section.