Chapter DHS 149

DHS 149.24   Mandatory participant or proxy disqualification.

DHS 149.25   Participant appeals.

Ch. DHS 149 Note Note: Chapter HSS 149 was created as an emergency rule effective June 7, 1986. Chapter HSS 149 was renumbered Chapter HFS 149 under s. 13.93 (2m) (b) 1., Stats., and corrections made under s. 13.93 (2m) (b) 6. and 7., Stats., Register, August, 1997, No. 500. Chapter HFS 149 as it existed on June 30, 2008, was repealed and a new chapter HFS 149 was created Register June 2008 No. 630, effective July 1, 2008. Chapter HFS 149 was renumbered chapter DHS 149 under s. 13.92 (4) (b) 1., Stats., and corrections made under s. 13.92 (4) (b) 7., Stats., Register January 2009 No. 637.

subch. I of ch. DHS 149 Subchapter I — General Provisions

DHS 149.01 DHS 149.01 Authority and purpose. This chapter is adopted pursuant to ss. 46.016, 227.11 (2) (a) and 253.06 (5) (a), Stats., and a state plan under s. 253.03, Stats., and 7 CFR 246. This chapter establishes the criteria for approval of grocery stores and pharmacies as authorized vendors to sell foods to participants under the special supplemental nutrition program for women, infants and children (WIC). This chapter also establishes criteria for individuals who receive or apply to receive benefits under the WIC program. The WIC program was established under section 17 of the Child Nutrition Act of 1966, as amended, 42 USC 1786 and 7 CFR 246.

DHS 149.01 History History: CR 07-115: cr. Register June 2008 No. 630, eff. 7-1-08; correction made under s. 13.92 (4) (b) 7., Stats., Register July 2011 No. 667.

DHS 149.02 DHS 149.02 Applicability. This chapter applies to applicants for WIC vendor authorization, authorized vendors, WIC participants, applicants for WIC program benefits, and persons serving as proxies for participants.

DHS 149.02 History History: CR 07-115: cr. Register June 2008 No. 630, eff. 7-1-08.

DHS 149.03 DHS 149.03 Definitions. In this chapter:

DHS 149.03(1) (1) “Above-50-percent vendor” means an authorized vendor who derives more than 50 percent of annual food sales revenue from WIC checks. It includes vendor applicants applying for an initial authorization who estimate they will derive more than 50 percent of annual food sales revenue from WIC checks.

DHS 149.03(2) (2) “Agreement” means the document signed by a vendor and the state WIC office that contains the terms and conditions under which the vendor is authorized to accept and redeem WIC checks in exchange for authorized food; the completed application form; the vendor’s stock price surveys; the vendor manual; the list of authorized food; memos or other formal instructions; and the terms of participation issued by the state WIC office to vendors.

DHS 149.03(3) (3) “Authorized food” means food identified by the department in accordance with 7 CFR 246.10 as acceptable for use under the federal special supplemental food program for women, infants and children under 42 USC 1786. “Authorized food” is a reference to the types, brands, or varieties of foods approved by the state WIC office and is commonly referred to by the department and local projects as “approved foods”.

DHS 149.03(4) (4) “Authorized infant formula provider list” means the list of wholesalers, distributors, retailers and manufacturers approved by the state WIC office to provide infant formula to authorized vendors.

DHS 149.03(5) (5) “Authorized vendor” means a vendor that has been authorized by the department to accept WIC checks from participants and have the WIC checks redeemed by the department.

DHS 149.03(6) (6) “Change of ownership” means any transfer of the right to control the assets or management of an authorized vendor, or any majority changes in ownership of a vendor.

DHS 149.03(7) (7) “Civil money penalty” means a monetary penalty imposed on an authorized vendor in lieu of disqualification as specified under 7 CFR 246.12 (l) (1) (ix) and (x).

DHS 149.03(8) (8) “Contract period” means the period of time a vendor is an authorized vendor.

DHS 149.03(9) (9) “Customer area” means the portion of a grocery store or pharmacy that is normally frequented by customers and does not include storage or other areas that are normally not frequented by customers.

DHS 149.03(10) (10) “Department” means the Wisconsin department of health services.

DHS 149.03(11) (11) “Disqualification” means the official act by the department of ending WIC participation of either an authorized vendor or of a participant because of a program violation.

DHS 149.03(12) (12) “Enforcement assessment” means the supplemental food enforcement surcharge added to a forfeiture or recoupment.

DHS 149.03(12m) (12m) “Family” means a group or related or nonrelated individuals who are living together as one economic unit, except that residents of a homeless facility or an institution shall not be considered as members of a single family.

DHS 149.03(13) (13) “Food distribution center” means an entity, other than a vendor, that is under contract with the department under s. 253.06 (3m), Stats., to distribute authorized food to participants.

DHS 149.03(14) (14) “Food sales” means the sales of all foods that are eligible items under the food stamp program.

DHS 149.03(15) (15) “Food stamp program” means the assistance program under 7 USC 2011 to 2029, and known in Wisconsin as the FoodShare Program.

DHS 149.03(16) (16) “Forfeiture” means the sum of money required to be paid to the state WIC office as a result of a vendor violation.

DHS 149.03(17) (17) “Grocery store” means a retail store that sells a general line of food for the household to eat, such as breads and cereals; fruits and vegetables; meats, fish, and poultry; and dairy products or a store authorized by the food stamp program as a specialty store.

DHS 149.03(18) (18) “Initial authorization” means the authorization for a vendor when the vendor was not an authorized vendor at the time an application for authorization was submitted.

DHS 149.03(19) (19) “Local project” means an agency that has a contract with the department to provide WIC services such as eligibility determination, WIC check distribution and nutrition counseling for participants.

DHS 149.03(20) (20) “Local project clinic” means a site established by a local project that carries out the functions of the local project in a facility separate from the local project.

DHS 149.03(21) (21) “Maximum food price” is the maximum amount a vendor within each vendor peer group may charge for an authorized food item or for a standardized combination of foods.

DHS 149.03(22) (22) “Minimum stock requirement” means the types, varieties, brands and quantities of foods that authorized vendors are required to keep in the customer area as specified in the WIC vendor manual and stock price survey.

DHS 149.03(23) (23) “Non-sale price” means the price of an item that has not been reduced in price.

DHS 149.03(24) (24) “Preauthorization site visit” means the on-site review of the vendor conducted by the state WIC office staff or its designee to verify the information on the WIC vendor application, to evaluate the cleanliness of the establishment, and to evaluate the freshness of the authorized foods on the premises.

DHS 149.03(25) (25) “Participant” means a person who is eligible for and receives services under s. 253.06, Stats. In administrating the WIC program under s. 253.06, Stats., and 7 CFR 246, the department has determined that a participant includes an infant, child under age 5, and a pregnant, breastfeeding, or postpartum woman within six months of delivery.

DHS 149.03(26) (26) “Pharmacy” means an establishment that is issued a license to operate as a pharmacy under s. 450.06, Stats. Under this chapter, “Pharmacy” includes the persons conducting transactions on behalf of the pharmacy, including the owner, manager, a representative, an employee or any other individual who directly or indirectly participates in the operation of the pharmacy.

DHS 149.03(27) (27) “Proxy” means a person who has been designated in writing by a participant or by the department to obtain and exchange WIC checks for authorized food on behalf of the participant.

DHS 149.03(28) (28) “Sanction” means a penalty imposed by the local project or state WIC office on a vendor, participant, or participant’s proxy because of a violation of this chapter and includes disqualification, recoupment, forfeiture, enforcement assessments under s. 253.06 (5) (b), Stats., or civil money penalties.

DHS 149.03(29) (29) “Standardized combination of foods” means a group of authorized foods selected by the state WIC office.

DHS 149.03(30) (30) “State WIC office” means the section of the department assigned to administer WIC.

DHS 149.03(31) (31) “Stock price survey” means the department form on which a vendor’s prices for authorized food are listed.

DHS 149.03 Note Note: The stock price survey can be obtained from the WIC Portal at https://www.wicvendorwi.org/ or http://dhs.wisconsin.gov/wic/wicPro/Vendor_Auth/index.htm, or write to the State WIC Office, Vendor Management, Division of Public Health, P.O. Box 2659, Madison, WI 53701-2659, or call 608-266-6912, or submit a fax request at 608-266-1514.

DHS 149.03(32) (32) “USDA” means the United States department of agriculture.

DHS 149.03(33) (33) “Vendor” means a grocery store or pharmacy that sells authorized foods. A vendor can be a sole proprietorship, a partnership, a cooperative association, a corporation, or another business entity operating one or more grocery stores or pharmacies.

DHS 149.03(34) (34) “Vendor manual” means the manual that the state WIC office publishes that describes the WIC program and program policies related to the provision of authorized food to participants, including program policies, periodic updates and amendments, applicable rules, and other requirements.

DHS 149.03(35) (35) “Vendor peer group” means 2 or more vendors who have similar characteristics as determined by the state WIC office.

DHS 149.03(36) (36) “Vendor stamp” means a rubber stamp provided to an authorized vendor or food distribution center by the state WIC office to validate WIC checks.

DHS 149.03(37) (37) “WIC benefit” means WIC checks, authorized food purchased with WIC checks, and WIC breast pumps.

DHS 149.03(38) (38) “WIC check” means the negotiable instrument distributed by the department for use by a participant to purchase authorized food.

DHS 149.03(39) (39) “WIC participant identification” means the document issued by a local project to the participant or the participant’s parent or guardian that includes the signature of the participant or the participant’s parent or guardian as well as the signature of each proxy authorized to spend the participant’s WIC checks.

DHS 149.03(40) (40) “WIC program” or “WIC” means the special supplemental nutrition program for women, infants and children established pursuant to 42 USC 1786, and 7 CFR 246, and s. 253.06, Stats.

DHS 149.03 History History: CR 07-115: cr. Register June 2008 No. 630, eff. 7-1-08; correction in (10) made under s. 13.92 (4) (b) 6., Stats., Register January 2009 No. 637; corrections in (13), (25), (28) and (40) made under s. 13.92 (4) (b) 7., Stats., Register July 2011 No. 667.

subch. II of ch. DHS 149 Subchapter II — Vendor Authorization And Responsibilities

DHS 149.04 DHS 149.04 Food distribution centers. Food distribution centers shall comply with this chapter and s. 253.06, Stats.

DHS 149.04 History History: CR 07-115: cr. Register June 2008 No. 630, eff. 7-1-08; correction made under s. 13.92 (4) (b) 7., Stats., Register July 2011 No. 667.

DHS 149.05 DHS 149.05 Minimum requirements for vendor authorization. A vendor may be eligible to become an authorized vendor, remain an authorized vendor, or be eligible for renewal as an authorized vendor if all of the following conditions are met:

DHS 149.05(1) (1) The vendor is located in Wisconsin.

DHS 149.05(2) (2) The vendor has a fixed location unless otherwise allowed by the state WIC office, as in the case of a designated disaster or emergency.

DHS 149.05(3) (3) The vendor demonstrates business integrity.

DHS 149.05 Note Note: Activities that would indicate 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, obstruction of justice, or aiding and abetting any of these activities.

DHS 149.05(4) (4) The vendor and any of its representatives, agents, managers, employees, or other persons who directly or indirectly participates in the operation of the grocery store or pharmacy have not been convicted of a crime, or had a civil or criminal judgment entered against them in Wisconsin or any other state during the last 6 years for an activity that would indicate a lack of business integrity.

DHS 149.05(5) (5) The vendor and any of its representatives, agents, managers, employees or other persons who directly or indirectly participate in the operation of the grocery store or pharmacy, who has current or prior involvement with WIC or the food stamp program, has an acceptable history with WIC and the food stamp program. In determining whether the history is acceptable, the state WIC office shall consider the person’s history with either WIC or the food stamp program, including whether the person conducts or has conducted business without authorization by WIC or the food stamp program as applicable.

DHS 149.05(6) (6) The vendor is not currently disqualified from the food stamp program and has not had a food stamp program civil money penalty suspended for hardship where the disqualification period that would otherwise have been imposed has not expired.

DHS 149.05(7) (7) The vendor has not been adjudged to be delinquent in the payment of taxes under ch. 71, 72, 76, 77, 78 or 139, Stats.

DHS 149.05(8) (8) The vendor has not been sold by its previous owner to another vendor or owner in an attempt to circumvent a WIC sanction. The state WIC office may consider such factors as whether the previous owner sold the grocery store or pharmacy to a person who is related by blood or marriage to the previous owner or sold to any individual or organization for less than the grocery store or pharmacy’s fair market value.

DHS 149.05(9) (9) The vendor has no outstanding forfeitures, recoupment assessments, enforcement assessments, or civil money penalties that were levied against that vendor for a violation of this chapter, or for a violation of s. 253.06, Stats., or 7 CFR 246.

DHS 149.05(10) (10) The vendor is not an above-50-percent vendor at the time of the initial application for authorization to be a WIC vendor.

DHS 149.05(11) (11) The vendor’s maximum price for a standardized combination of foods is the same or less than the prices charged by other vendors in the vendor’s peer group.

DHS 149.05(12) (12) The vendor purchases infant formula provided to participants only from a supplier listed on the authorized infant formula provider list.

DHS 149.05(13) (13) The vendor has regular, established hours of operation which include a minimum of two 4-hour blocks of time on each of 5 days per week and daily operating hours are consistent from week to week.

DHS 149.05(14) (14) The vendor has not accepted WIC checks before becoming an authorized vendor.

DHS 149.05(15) (15) The vendor meets the minimum stock requirement on shelves or in coolers in the customer area, unless otherwise specified in the contract.

DHS 149.05 History History: CR 07-115: cr. Register June 2008 No. 630, eff. 7-1-08; correction in (9) made under s. 13.92 (4) (b) 7., Stats., Register July 2011 No. 667.

DHS 149.06 DHS 149.06 Application requirements.

DHS 149.06(1) (1) Only persons who meet the eligibility requirements under s. DHS 149.05 may apply for authorization. An eligible person who wishes to apply for authorization shall apply to the state WIC office on an application form obtained from the state WIC office. The person applying for initial authorization shall complete each application form fully and accurately; submit for each application a stock price survey indicating the non-sale prices of approved food available on the day the application is submitted to the state WIC office; participate in training as requested under sub. (2); and provide additional information requested from the state WIC office or the state WIC office designee. An application for authorization shall be submitted under each of the following circumstances:

DHS 149.06(1)(a) (a) Multiple locations. If a person wishes to accept and redeem WIC checks at multiple locations, a separate application shall be completed and submitted for each grocery store or pharmacy for which the person wishes to accept and redeem WIC checks.

DHS 149.06(1)(b) (b) Change of ownership. If a person takes ownership, whether by gift, purchase, or lease of an authorized vendor, the person taking ownership shall submit an application at least 15 days before change of ownership.

DHS 149.06(1)(c) (c) Change of vendor location. With the exception of s. DHS 149.08 (6), if the location of an authorized vendor is changed, the person responsible for the change shall complete an application for authorization for the new location. The vendor may not accept or redeem WIC checks at the new location until the vendor has received authorization from the state WIC office for the new location.

DHS 149.06 Note Note: See s. DHS 149.08 (6) for procedures for reporting a change of location.

DHS 149.06(2) (2) As part of the application process, the vendor or its designee, for each location for which authorization is requested, shall participate in a training session at a time and location designated by the state WIC office or the state WIC office designee.

DHS 149.06 History History: CR 07-115: cr. Register June 2008 No. 630, eff. 7-1-08.

DHS 149.07 DHS 149.07 Action on application.

DHS 149.07(1) (1) Initial authorization. Within 60 days after receipt by the state WIC office of a fully and accurately completed application for initial authorization, state WIC office staff shall approve or deny the application after doing all of the following:

DHS 149.07(1)(a) (a) Determining whether the applicant for initial authorization meets the eligibility requirements under s. DHS 149.05.

DHS 149.07(1)(b) (b) Conducting a preauthorization site visit if the applicant meets all of the application requirements and is eligible under ss. DHS 149.05 and 149.06 for authorization. During the preauthorization visit, staff of the state WIC office or the state WIC office designee shall determine whether all of the following requirements are being met:

DHS 149.07(1)(b)1. 1. The vendor meets the minimum stock requirement on shelves or in coolers in the customer area, unless otherwise specified in the agreement.

DHS 149.07(1)(b)2. 2. The vendor marks or affixes the prices of authorized food directly on food containers, on the shelves in close proximity to the food, or in the immediate area where the foods are kept in the customer area of the store.

DHS 149.07(1)(b)3. 3. The vendor’s prices are substantially the same as those listed on the stock price survey submitted with the application for authorization.