Chapter 253

253.04 History History: 1993 a. 27 s. 370.

253.05 253.05 Federal funds. The department shall use sufficient funds from the appropriation under s. 20.435 (1) (a) for the promotion of the welfare and hygiene of maternity and infancy to match federal funds received by the state.

253.05 History History: 1993 a. 27 s. 371.

253.06 253.06 State supplemental food program for women, infants and children.

253.06(1) (1) Definitions. In this section:

253.06(1)(ag) (ag) “Alternate participant” means a person who has been authorized by a participant to request benefits, participate in nutrition education, bring an infant or child to a Women, Infants, and Children program appointment, and have access to information in the participant’s file.

253.06(1)(am) (am) “Approved food” means food identified by the department as an authorized food in accordance with 7 CFR 246.10 as acceptable for use under the federal special supplemental nutrition program for women, infants and children under 42 USC 1786.

253.06(1)(br) (br) “Cardholder” means a participant; alternate participant; parent, legal guardian, or caretaker of a participant; or another person in possession of a Women, Infants, and Children program electronic benefit transfer card and the personal identification number for the card.

253.06(1)(cm) (cm) “Direct distribution center” means an entity, other than a vendor, that is under contract with the department under sub. (3m) to distribute approved food to participants.

253.06(1)(cp) (cp) “Electronic benefit transfer” means a method that permits electronic access to Women, Infants, and Children program benefits using a device, approved by the department, with payments made in accordance with ch. 410.

253.06(1)(cr) (cr) “Food instrument” means a voucher, check, electronic benefit transfer card, electronic benefit transfer card number and personal identification number, coupon, or other method used by a participant to obtain Women, Infants, and Children program approved foods.

253.06(1)(ct) (ct) “Infant formula supplier” means a wholesaler, distributor, retailer, or manufacturer of infant formula.

253.06(1)(cv) (cv) “Local agency” means an entity that has a contract with the department to provide services under the Women, Infants, and Children program such as eligibility determination, benefit issuance, and nutritional counseling for participants.

253.06(1)(d) (d) “Participant” means a person who is eligible for services under this section and who receives services under this section.

253.06(1)(dr) (dr) “Summary suspension” means an emergency action taken by the department to suspend an authorization under the Women, Infants, and Children program.

253.06(1)(dv) (dv) “Trafficking” means doing any of the following:

253.06(1)(dv)1. 1. Buying, selling, stealing, or otherwise exchanging for cash or consideration other than approved food Women, Infants, and Children program food instruments or benefits that are issued and accessed via a food instrument.

253.06(1)(dv)2. 2. Exchanging firearms, ammunition, explosives, or controlled substances, as defined in 21 USC 802, for a food instrument.

253.06(1)(dv)3. 3. Intentionally purchasing and reselling for cash or consideration other than approved food a product that is purchased with a food instrument.

253.06(1)(dv)4. 4. Intentionally purchasing with cash or consideration other than approved food a product that was originally purchased with a food instrument.

253.06(1)(e) (e) “Vendor” means a person that operates one or more stores or pharmacies authorized by the department under sub. (3) to provide approved foods under a retail food delivery system.

253.06(1)(g) (g) “Women, Infants, and Children program” means the federal special supplemental nutrition program for women, infants and children under 42 USC 1786 and this section.

253.06(1m) (1m) Program administration. The department may identify an alternate participant as the Women, Infants, and Children program cardholder for purposes of electronic administration of the Women, Infants, and Children program.

253.06(2) (2) Use of funds. From the appropriation under s. 20.435 (1) (em), the department shall supplement the provision of supplemental foods, nutrition education, and other services, including nutritional counseling, to low-income women, infants, and children who meet the eligibility criteria under the federal special supplemental food program for women, infants, and children authorized under 42 USC 1786. To the extent that funds are available under this section and to the extent that funds are available under 42 USC 1786, the department shall provide the supplemental food, nutrition education, and other services authorized under this section and shall administer that provision in every county. The department may enter into contracts for this purpose.

253.06(3) (3) Authorization of vendors.

253.06(3)(a) (a) The department may authorize a vendor only if the vendor meets all of the following conditions:

253.06(3)(a)1. 1. The vendor submits to the department a completed application.

253.06(3)(a)2. 2. The vendor meets the minimum requirements for authorization, as established by the department by rule under sub. (5) (a) 1.

253.06(3)(a)3. 3. The vendor does not have any outstanding fines, forfeitures, or recoupments, or costs, fees, and surcharges imposed under ch. 814, that were levied against that vendor for a violation of this section or for a violation of rules promulgated under this section. This subdivision does not apply if the vendor has contested the fine, forfeiture, or recoupment, or costs, fees, and surcharges imposed under ch. 814, and has not exhausted administrative or judicial review.

253.06(3)(a)4. 4. The vendor is fit and qualified, as determined by the department. In determining whether a vendor is fit and qualified, the department shall consider any relevant conviction of the vendor or any of the vendor’s employees for civil or criminal violations substantially related to the operation of a grocery store or pharmacy.

253.06(3)(a)5. 5. The vendor has an electronic benefit transfer-capable cash register system or payment device, approved by the department, that is able to accurately and securely obtain Women, Infants, and Children program food balances associated with the electronic benefit transfer card, maintain the necessary electronic files such as the approved food list, successfully complete Women, Infants, and Children program electronic benefit transfer purchases, and process Women, Infants, and Children program electronic benefit transfer payments.

253.06(3)(bg) (bg) The department may limit the number of vendors that it authorizes under this subsection if the department determines that the number of vendors already authorized under this subsection is sufficient to permit participants to obtain approved food conveniently.

253.06(3)(bm) (bm) The department shall approve or deny initial authorization within 90 days after the receipt of a completed application. If the application is denied, the department shall give the applicant reasons, in writing, for the denial and shall inform the applicant of the right to appeal that decision under sub. (6).

253.06(3)(c) (c) The department may redeem food instruments only when submitted by a person who is an authorized vendor under this subsection except as provided in sub. (3m).

253.06(3)(d) (d) Each store operated by a business entity is a separate vendor for purposes of this section and is required to have a single, fixed location, except when the authorization of mobile stores is necessary to meet special needs in accordance with 7 CFR 246.4 (1) (14) (xiv). The department shall require that each store be authorized as a vendor separately from other stores operated by the business entity.

253.06(3m) (3m) Direct distribution centers.

253.06(3m)(a) (a) The department may contract for an alternative system of approved food distribution with an entity other than a vendor only if the entity meets all of the following requirements:

253.06(3m)(a)1. 1. The entity meets the minimum requirements established by the department by rule under sub. (5) (a) 1.

253.06(3m)(a)2. 2. The entity does not have any outstanding fines, forfeitures, or recoupments, or costs, fees, and surcharges imposed under ch. 814, that were levied against that entity for a violation of this section or for a violation of rules promulgated under this section. This subdivision does not apply if the entity has contested the fine, forfeiture, or recoupment, or costs, fees, and surcharges imposed under ch. 814, and has not exhausted administrative or judicial review.

253.06(3m)(a)3. 3. The entity is fit and qualified, as determined by the department.

253.06(3m)(a)4. 4. The entity has an electronic benefit transfer-capable cash register system or payment device, approved by the department, that is able to accurately and securely obtain Women, Infants, and Children program food balances associated with the electronic benefit transfer card, maintain the necessary files, successfully complete Women, Infants, and Children program electronic benefit transfer purchases, and process Women, Infants, and Children program electronic benefit transfer payments.

253.06(3m)(b) (b) The department may process a payment if submitted by a direct distribution center that is authorized by the department under this subsection.

253.06(4) (4) Prohibited practices.

253.06(4)(a) (a) No person may do any of the following:

253.06(4)(a)1. 1. Accept a food instrument or submit a request to the department for redemption without authorization.

253.06(4)(a)2m. 2m. Engage in trafficking.

253.06(4)(a)3. 3. Accept a food instrument other than in exchange for approved food that is selected by the electronic benefit transfer cardholder.

253.06(4)(a)3m. 3m. Provide approved food or other commodities to an electronic benefit transfer cardholder in exchange for a food instrument accepted by a 3rd party.

253.06(4)(a)4. 4. Submit a payment request for a dollar amount that is higher than the actual retail price of the item for which a food instrument was used.

253.06(4)(a)5m. 5m. Confiscate a food instrument or ask for or enter the electronic benefit transfer cardholder’s personal identification number.

253.06(4)(a)7. 7. Provide materially false information to the department or fail to provide in a timely manner material information that the department requests.

253.06(4)(a)9. 9. Provide to someone other than the department a food instrument; a Women, Infants, and Children program electronic benefit transfer card; or food purchased with a food instrument for something of value.

253.06(4)(b) (b) A person who violates any provision of this subsection is guilty of a Class I felony for the first offense and is guilty of a Class H felony for the 2nd or subsequent offense.

253.06(4)(c) (c)

253.06(4)(c)1. 1. Whenever a court imposes a fine, forfeiture, or recoupment for a violation of this subsection or imposes a forfeiture or recoupment for a violation of rules promulgated under sub. (5), the court shall also impose a supplemental food enforcement surcharge under ch. 814 in an amount of 50 percent of the fine, forfeiture, or recoupment imposed. If multiple offenses are involved, the court shall base the supplemental food enforcement surcharge on the total fine, forfeiture, and recoupment amounts for all offenses. When a fine, forfeiture, or recoupment is suspended in whole or in part, the court shall reduce the supplemental food enforcement surcharge in proportion to the suspension.

253.06(4)(c)2. 2. If a fine or forfeiture is imposed by a court of record, after a determination by the court of the amount due, the clerk of the court shall collect and transmit such amount to the county treasurer as provided in s. 59.40 (2) (m). The county treasurer shall then make payment to the secretary of administration as provided in s. 59.25 (3) (f) 2.

253.06(5) (5) Rules and penalties.

253.06(5)(a) (a) The department shall promulgate rules to establish all of the following:

253.06(5)(a)1. 1. Minimum qualification standards for the authorization of vendors and infant formula suppliers and for the awarding of a contract to an entity under sub. (3m).

253.06(5)(a)2. 2. Standards of operation for authorized vendors and infant formula suppliers and direct distribution centers, including prohibited practices.

253.06(5)(a)3. 3. Minimum requirements for participants, including prohibited practices.

253.06(5)(a)4. 4. Procedures for approving or denying an application to be a participant, including appeal procedures.

253.06(5)(b) (b) A person who violates any rule promulgated under this subsection may be subject to any of the following:

253.06(5)(b)1. 1. Denial of the application to be a participant or authorized vendor or infant formula supplier.

253.06(5)(b)2. 2. Summary suspension or termination of authorization for an authorized vendor or infant formula supplier or, in the case of a direct distribution center, termination of the contract.

253.06(5)(b)3. 3. Disqualification from the program under this section for a vendor, infant formula supplier, or participant.

253.06(5)(b)4. 4. Forfeiture of not less than $10 nor more than $1,000.

253.06(5)(b)5. 5. Recoupment.

253.06(5)(b)6. 6. Civil monetary penalty.

253.06(5)(b)7. 7. Warning letter.

253.06(5)(b)8. 8. Implementation of a corrective action plan.

253.06(5)(c) (c) Whenever the department imposes a forfeiture or recoupment for a violation of rules promulgated under this subsection, the department shall also impose an enforcement assessment in an amount of 50 percent of the forfeiture or recoupment imposed. If multiple offenses are involved, the department shall base the enforcement assessment upon the total forfeiture and recoupment amounts for all offenses. When a forfeiture or recoupment is suspended in whole or in part, the department shall reduce the enforcement assessment in proportion to the suspension.

253.06(5)(d) (d) The department may directly assess a forfeiture provided for under par. (b) 4., recoupment provided for under par. (b) 5. and an enforcement assessment provided for under par. (c). If the department determines that a forfeiture, recoupment or enforcement assessment should be levied, or that authorization or eligibility should be summarily suspended or terminated, for a particular violation or for failure to correct it, the department shall send a notice of assessment, summary suspension or termination to the vendor, infant formula supplier, direct distribution center or participant. The notice shall inform the vendor, infant formula supplier, direct distribution center or participant of the right to a hearing under sub. (6) and shall specify all of the following:

253.06(5)(d)1. 1. The amount of the forfeiture assessed, if any.

253.06(5)(d)2. 2. The amount of the recoupment assessed, if any.

253.06(5)(d)3. 3. The amount of the enforcement assessment, if any.

253.06(5)(d)4. 4. The violation.

253.06(5)(d)5. 5. The statute or rule alleged to have been violated.

253.06(5)(d)6. 6. If applicable, the effective date of the summary suspension or termination.

253.06(5)(e) (e)

253.06(5)(e)1. 1. The termination of authorization of a vendor, infant formula supplier, or direct distribution center or eligibility of a participant shall be effective beginning on the 15th day after receipt of the notice of termination.

253.06(5)(e)2. 2. All forfeitures, recoupments, and enforcement assessments shall be paid to the department within 15 days after receipt of notice of assessment or, if the forfeiture, recoupment, or enforcement assessment is contested under sub. (6), within 10 days after receipt of the final decision after exhaustion of administrative review, unless the final decision is adverse to the department or unless the final decision is appealed and the decision is stayed by court order under sub. (7). The department shall remit all forfeitures paid to the secretary of administration for deposit in the school fund. The department shall deposit all enforcement assessments in the appropriation under s. 20.435 (1) (gr).

253.06(5)(e)3. 3. The summary suspension of authorization of a vendor, infant formula supplier, or direct distribution center shall be effective immediately upon receipt of the notice under par. (d).

253.06(5)(f) (f) The attorney general may bring an action in the name of the state to collect any forfeiture or recoupment imposed under par. (b) or enforcement assessment imposed under par. (c), if the forfeiture, recoupment or enforcement assessment has not been paid following the exhaustion of all administrative and judicial reviews. The only issue that may be contested in any such action is whether the forfeiture or enforcement assessment has been paid.

253.06(6) (6) Appeal procedure.

253.06(6)(a) (a) Any hearing under s. 227.42 granted by the department under this section may be conducted before the division of hearings and appeals in the department of administration.

253.06(6)(b) (b) A person may contest an assessment of forfeiture, recoupment or enforcement assessment, a denial or termination of authorization, a civil monetary penalty assessed in lieu of disqualification, a summary suspension, or a termination of eligibility by sending a written request for hearing under s. 227.44 to the division of hearings and appeals in the department of administration within 10 days after the receipt of the notice issued under sub. (3) (bm) or (5) (d). The administrator of the division of hearings and appeals may designate a hearing examiner to preside over the case and recommend a decision to the administrator under s. 227.46. The decision of the administrator of the division of hearings and appeals shall be the final administrative decision. The division of hearings and appeals shall commence the hearing and issue a final decision within 60 days after receipt of the request for hearing unless all of the parties consent to a later date. Proceedings before the division of hearings and appeals are governed by ch. 227. In any petition for judicial review of a decision by the division of hearings and appeals, the department, if not the petitioner who was in the proceeding before the division of hearings and appeals, shall be the named respondent.

253.06(7) (7) Injunction procedure. No injunction may be issued in any proceeding for review under ch. 227 of a decision of the division of hearings and appeals under sub. (6), suspending or staying the decision except upon application to the circuit court or presiding judge thereof, notice to the department and any other party and hearing. No injunction that delays or prevents a decision of the division of hearings and appeals from becoming effective may be issued in any other proceeding or action in any court unless the parties to the proceeding before the division of hearings and appeals in which the order was made are also parties to the proceeding or action before the court.

253.06(8) (8) Inspection of premises. The department may visit and inspect each authorized vendor and infant formula supplier and each direct distribution center, and for such purpose shall be given unrestricted access to the premises described in the authorization or contract.