Chapter DHS 149

DHS 149.18(4)(c)1.c. c. A specific description of the mistake in fact or law which the vendor contends constitutes reasonable grounds for reversing the decision of the state WIC office to deny an authorization or terminate an agreement. If the vendor asserts that a mistake in fact was made, the request shall include a concise statement of the essential facts which the vendor intends to establish at the review. If the vendor asserts a mistake in law was made, the request shall include a statement of the law upon which the vendor relies.

DHS 149.18(4)(c)2. 2. The agency review shall be conducted by a decision-maker who is someone other than the person who rendered the initial decision on the action.

DHS 149.18(4)(c)3. 3. The decision-maker’s determination shall be based solely on whether the state WIC office correctly applied federal and state statutes, regulations, policies, and procedures governing the program, according to the information provided to the vendor in the notice of denial of authorization or termination of agreement and the vendor’s response.

DHS 149.18(4)(c)4. 4. If the designated decision-maker determines that a conference with the parties would assist in the completion of his or her review, the decision-maker may issue a notice of conference, prepared on forms prescribed by the department and including a description of conference procedures, and inviting the vendor and all other parties to participate. A conference may not be held without the consent of the vendor.

DHS 149.18(4)(c)5. 5. The decision-maker shall issue written notification of the abbreviated review decision.

DHS 149.18(4)(c)6. 6. The decision-maker’s review decision shall constitute the agency’s final decision. Review decisions shall include notice of a vendor’s right to appeal the determination to circuit court.

DHS 149.18 History History: CR 07-115: cr. Register June 2008 No. 630, eff. 7-1-08; correction in (1) (a) made under s. 13.92 (4) (b) 7., Stats., Register July 2011 No. 667.

subch. IV of ch. DHS 149 Subchapter IV — Participants and Proxies

DHS 149.19 DHS 149.19 Conditions of eligibility. In order to be certified or remain certified as a participant to receive WIC benefits, an individual shall meet all of the following requirements:

DHS 149.19(1) (1) Is an infant, a child under age 5, pregnant, breastfeeding or a postpartum woman who is within 6 months of delivery.

DHS 149.19(2) (2) Lives in Wisconsin.

DHS 149.19(3) (3) Has a household gross income that is less than or equal to 185% of the federal poverty level, based on family size. A participant is also income eligible if the participant is currently certified eligible to receive FoodShare, Medicaid, or another similar economic support program.

DHS 149.19(4) (4) Has a health or diet need, as determined by WIC staff.

DHS 149.19 History History: CR 07-115: cr. Register June 2008 No. 630, eff. 7-1-08.

DHS 149.20 DHS 149.20 Notification of participant responsibilities.

DHS 149.20(1) (1) Certification appointments. During each certification appointment the local project shall do all of the following:

DHS 149.20(1)(a) (a) Inform each applicant, participant, or parent/guardian that it is a violation of state and federal law to participate in more than one local project or local project clinic at the same time. The local project shall provide each applicant, participant or parent/guardian with a written copy of the participant rights and responsibilities and offer the opportunity to have these rights and responsibilities read to them upon request.

DHS 149.20(1)(b) (b) Offer each participant, parent/guardian or proxy an explanation of how to use WIC checks, a copy of instructions for using WIC checks, an explanation on how to select authorized WIC food, and a list of authorized vendors.

DHS 149.20(2) (2) Before the local project loans a participant a WIC-purchased electric breast pump, the local project shall notify each participant who is loaned a pump that the pump must be returned to the local project at the end of the agreed period.

DHS 149.20 History History: CR 07-115: cr. Register June 2008 No. 630, eff. 7-1-08.

DHS 149.21 DHS 149.21 Denial or disqualification.

DHS 149.21(1) (1) If the local project determines that an applicant does not meet all of the eligibility requirements for the WIC program, the local project shall notify the applicant or his or her parent/guardian in writing of the ineligibility, the reasons for the ineligibility, and the right to a fair hearing on the determination of ineligibility within 15 days of the determination of ineligibility.

DHS 149.21(2) (2) If the local project determines, at any time during the certification period, that a participant is disqualified from program participation, the local project shall notify the participant or parent/guardian in writing at least 15 days before the disqualification. The notice shall specify the reason for the disqualification and advise the participant or parent/guardian of the right to a fair hearing on the determination of the disqualification.

DHS 149.21(3) (3) A local project may serve notice of denial or disqualification by certified mail to the participant’s address of record or by personal delivery. If service is by certified mail, notice shall be considered filed on the date of mailing.

DHS 149.21 History History: CR 07-115: cr. Register June 2008 No. 630, eff. 7-1-08.

DHS 149.22 DHS 149.22 Repayments.

DHS 149.22(1) (1) If the local project determines that a participant has received or disposed of WIC benefits fraudulently, the local project shall provide written notice to the participant or parent/guardian of the intent to recover the funds. Such notification shall include an explanation of the reasons for the repayment and of the participant’s right to a hearing. The local project shall allow 30 days for the participant to repay the funds or to set up a repayment schedule between the local project and the participant before taking additional collection actions.

DHS 149.22(2) (2) A local project may serve determination that repayment is required by certified mail to the participant’s address of record or by personal delivery. If service is by certified mail, notice shall be considered filed on the date of mailing.

DHS 149.22 History History: CR 07-115: cr. Register June 2008 No. 630, eff. 7-1-08.

DHS 149.23 DHS 149.23 Terminating or suspending WIC benefits due to shortage of funds. If the state WIC office determines that due to a shortage of funds for the WIC program, a participant’s WIC program benefits will be terminated or suspended, the local project shall issue a notice to the participant or parent/guardian at least 15 days before the termination or suspension.

DHS 149.23 History History: CR 07-115: cr. Register June 2008 No. 630, eff. 7-1-08.

DHS 149.24 DHS 149.24 Mandatory participant or proxy disqualification.

DHS 149.24(1) (1) Mandatory one year disqualification.

DHS 149.24(1)(a) (a) Except as provided in par. (b), the local WIC project shall disqualify a participant and the participant’s proxy and other family members from the WIC program for one year if the local project determines that the participant or proxy has committed any one of the following violations:

DHS 149.24(1)(a)1. 1. Intentionally participating in and spending WIC checks from more than one WIC project or WIC project clinic during the same time period.

DHS 149.24(1)(a)2. 2. Intentionally participating in the WIC program and in the commodity supplemental food program at the same time.

DHS 149.24(1)(a)3. 3. Committing any violation that results in fraudulent receipt or disposal of $100 or more in WIC benefits.

DHS 149.24(1)(a)4. 4. Being assessed by the local project a second or subsequent repayment.

DHS 149.24(1)(b) (b) Exceptions to mandatory one year disqualification. The local project may decide not to impose the mandatory one year disqualification if within 30 days of the date of mailing a repayment letter, the participant makes full repayment or agrees to a repayment schedule acceptable to the local WIC project.

DHS 149.24(1)(c) (c) Mandatory repayment.

DHS 149.24(1)(c)1. 1. Except as provided in subd. 3., if an individual fraudulently receives or disposes of WIC program benefits, the local project shall require repayment of the full amount fraudulently received or disposed.

DHS 149.24(1)(c)2. 2. If the participant does not make full repayment within 30 days or if a repayment schedule is not agreed upon within 30 days, the local project shall provide a second written request for repayment. The state WIC office may take additional collection actions for total repayments exceeding $250.

DHS 149.24(1)(c)3. 3. For repayment of infant formula benefits, the state WIC office may allow the participant to repay an amount that is lower than the full price of the infant formula.

DHS 149.24(2) (2) Mandatory six month disqualification. The local project shall disqualify a participant and the participant’s proxy and other family members from the WIC program for 6 months if the local project determines that the participant or proxy has committed any one of the following violations:

DHS 149.24(2)(a) (a) Intentionally falsely reported the loss or theft of WIC participant identification or one or more WIC checks, and spent one or more WIC check from both the first set and the replacement set of checks.

DHS 149.24(2)(b) (b) Intentionally provided a false statement, concealed or misrepresented a fact, gave information that misrepresents true circumstances, or failed to give information about changes in true circumstances resulting in fraudulent enrollment in the WIC program and receipt of WIC benefits.

DHS 149.24(2)(c) (c) Stole or attempted to steal a WIC check from a local project.

DHS 149.24(2)(d) (d) Physically abused or threatened physical abuse of a state or local project staff member, a WIC vendor staff member, or another WIC participant at a local project or related function.

DHS 149.24(3) (3) Mandatory three month disqualification. After providing a warning letter for the first offense, the local project shall disqualify a participant and the participant’s proxy and other family members from the WIC program for 3 months if the local project determines that the participant or proxy has committed any one of the following violations:

DHS 149.24(3)(a) (a) Obtained or used a WIC check or WIC participant identification without the permission of the participant, or an authorized proxy if the participant is an infant or child.

DHS 149.24(3)(b) (b) Verbally abused a state or local WIC project staff member, a WIC vendor staff member, or another WIC participant at a local project or related function.

DHS 149.24(3)(c) (c) Sold or attempted to sell, exchange or return a WIC program benefit to others for cash, credit, non-authorized WIC food or another item.

DHS 149.24(3)(d) (d) Aided or abetted fraud or abuse of the WIC program.

DHS 149.24(3)(e) (e) Used or attempted to use an altered WIC check.

DHS 149.24(4) (4) Mandatory one month disqualification. After providing a warning letter for the first offense, the local project shall disqualify a participant and the participant’s proxy and other family members from the WIC program for one month if the local project determines that the participant or proxy has committed any one of the following violations:

DHS 149.24(4)(a) (a) Accepted a free non-WIC food item, cash or credit, as a gift or incentive to use a WIC check at a WIC vendor.

DHS 149.24(4)(b) (b) Made or attempted to make 2 or more separate purchases with a single WIC check.

DHS 149.24(4)(c) (c) Exchanged or attempted to exchange a WIC check at a vendor for food that is not an authorized food.

DHS 149.24(4)(d) (d) Purchased or attempted to purchase an authorized food in excess of the quantity stated on a WIC check.

DHS 149.24(4)(e) (e) Used a WIC check at a grocery store or pharmacy that is not a WIC vendor.

DHS 149.24(4)(f) (f) Signed a WIC check before the purchase price has been entered on the WIC check.

DHS 149.24(4)(g) (g) Failed to cooperate in a WIC program vendor audit, monitoring procedure, or investigation.

DHS 149.24(4)(h) (h) Used or attempted to use a WIC check before or after the dates printed on the WIC check.

DHS 149.24(5) (5) Persons disqualified. Disqualification from WIC program participation applies to all members of a family who are participants of the WIC program. The local project director may waive the disqualification for one or more members of the family if it is determined that a serious health risk may result from program disqualification, or if the participant is a foster child and is transferring to a new family.

DHS 149.24(6) (6) Reinstatement of participants.

DHS 149.24(6)(a) (a) Upon expiration of the disqualification period, the participant and the participant’s family members may reapply for and be certified for WIC program benefits, whether or not full repayment has been made.

DHS 149.24(6)(b) (b) The participant and the participant’s family members may reapply for WIC program benefits prior to the end of the disqualification period if repayment has been fully made or a repayment schedule is agreed upon and maintained.

DHS 149.24 History History: CR 07-115: cr. Register June 2008 No. 630, eff. 7-1-08.

DHS 149.25 DHS 149.25 Participant appeals.

DHS 149.25(1) (1) Actions appealable. An applicant or participant may appeal any of the following actions by the local project:

DHS 149.25(1)(a) (a) Denial of an application for participation in the WIC program.

DHS 149.25(1)(b) (b) Disqualification from the WIC program.

DHS 149.25(1)(c) (c) Request for repayment to the WIC program.

DHS 149.25(2) (2) Request for hearing.

DHS 149.25(2)(a) (a) An applicant, participant, or representative of the applicant or participant desiring to contest an action under sub. (1) may request a hearing. A request for hearing shall be received by the local project within 60 days after service of the written notice of local agency action.

DHS 149.25(2)(b) (b) The local project shall honor any clear expression of a desire for an opportunity to present the matter to a higher authority for review. A request may be made orally or in writing.

DHS 149.25(2)(c) (c) An applicant, participant, or representative of the applicant or participant shall address his or her request to the local project serving the participant.

DHS 149.25(3) (3) Continuation of benefits.

DHS 149.25(3)(a) (a) The local project shall continue to issue WIC program benefits to participants who appeal a termination of benefits within 60 days after service of the written notice. Benefits shall continue until the hearing official reaches a decision or the certification period expires, whichever occurs first.

DHS 149.25(3)(b) (b) Applicants who are denied benefits at initial certification, or participants who are no longer categorically eligible as a child under age 5, or a pregnant, breastfeeding, or postpartum woman within six months of delivery during a certification period, or whose certification period expires, are not eligible to receive benefits while awaiting a hearing.

DHS 149.25(4) (4) Hearing procedures.

DHS 149.25(4)(a) (a) For hearing requests received within 60 days after service of the written notice, the local project shall appoint a person as hearing 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 officer shall do all of the following:

DHS 149.25(4)(a)1. 1. Provide a written notice of the time and place for hearing to the applicant, participant, or representative of the applicant or participant and the local project at least 10 days before the date of the hearing.

DHS 149.25(4)(a)2. 2. Conduct the hearing within 21 days of receipt by the local project of the request for hearing.

DHS 149.25(4)(a)3. 3. Within 45 days of the request for hearing, issue to the parties written notification of the decision and notification of the participant’s or proxy’s rights to appeal.

DHS 149.25(4)(b) (b) Hearings shall be conducted in accordance with the requirements of 7 CFR 246.9 (h), (i) and (j) and the hearing officer shall require that testimony be given under oath or affirmation.

DHS 149.25(5) (5) State WIC office review.

DHS 149.25(5)(a) (a) An applicant, participant, or representative of the applicant or participant desiring to contest a local hearing decision shall submit a request in writing to the state WIC office within 15 working days of the date of written notification of a decision by a local project.

DHS 149.25(5)(b) (b) The state WIC office shall appoint a person to review the local hearing decision 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.