NOTICE IS HEREBY GIVEN That the Department of Health and Family Services will hold public hearings to consider the repeal and re-creation of HFS 149, relating to the Special Supplemental Nutrition Program for Women, Infants and Children (WIC) vendors and participants, and affecting small businesses.
Hearing Information
Date and Time
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Location
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January 30, 2008
9:30 a.m. - noon
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2202 S. Park Street (Villager Mall)
Madison, WI 53713
Room 310
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January 31, 2008
9:00 a.m. – 2:00 p.m
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640 S. 84th St., Tommy G Thompson Youth Center
West Allis, WI 53214
Governor's Room
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February 5, 2008
Noon – 2:00 p.m.
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1 South Oneida (Courthouse)
Rhinelander, WI 54501
County Board Room, 2nd floor
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February 6, 2008
10:00 a.m. – noon
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720 Second Avenue, City County Building
Eau Claire, WI 54703
Room G330
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February 7, 2008
9:00 – 11:00 a.m.
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610 South Broadway
Green Bay, WI 54303
2nd Floor
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The hearing sites are fully accessible to people with disabilities. If you are hearing impaired, do not speak English, or have circumstances that might make communication at a hearing difficult and you, therefore, require an interpreter or a non-English, large print or taped version of the hearing document, contact the person at the address or phone number given below at least 10 days before the hearing. With less than 10 days notice, an interpreter may not be available.
Submission of Written Comments
Written comments may be submitted at the public hearing or submitted to the contact person listed below. Comments may also be made using the Wisconsin Administrative Rule Website at
http://adminrules.wisconsin.gov. The deadline for submitting comments at the website and the contact person is 4:30 p.m., on February 14, 2008.
Analysis Prepared by the Department of Health and Family Services
Statutes interpreted
Statutory authority
Explanation of agency authority
Section
253.06, Stats., is specific to WIC and requires the Department to promulgate rules to establish the following: minimum qualification standards for the authorization of vendors in the WIC Program, the awarding of a contract to a vendor; and minimum requirements for participants, including prohibited practices.
Plain language analysis
Under the Special Supplemental Nutrition Program for Women, Infants and Children (WIC), the federal government provides supplemental foods and nutrition education through payment of cash grants to states that administer the program through local agencies at no cost to eligible persons. The WIC Program serves as an adjunct to good health care during critical times of growth and development, in order to prevent the occurrence of health problems. In Wisconsin, the WIC Program has 119,000 plus certified participants, comprised of low-income pregnant and breastfeeding women, infants and children under 5 years of age. Seventy local WIC projects (located in city and county public health departments, tribal agencies, private non-profit organizations, and one hospital) administer WIC in designated project service areas. These services include health screening, nutrition assessment and counseling, referrals to other health and social services, and WIC checks to purchase approved nutritious foods at authorized grocery stores and pharmacies (vendors).
The Wisconsin WIC Program is responsible for the authorization of some 1,000 vendors to provide food and infant formula to WIC participants. Applications are screened for basic store and management information, business integrity, and the selection of authorized WIC foods at competitive prices as determined by prices charged by all stores in the same peer group.
The proposed order repeals and recreates ch.
HFS 149, the Department's rules for authorizing and monitoring vendors participating in the Special Supplemental Nutrition Program for Women, Infants and Children (WIC), established under
42 USC 1786. The WIC Program in Wisconsin is administered by the Department and local agencies that contract with the Department to provide services such as eligibility determination, nutrition counseling, and food benefit issuance for participants. The existing administrative rules are being repealed and recreated to reflect changes in Wisconsin statutes and federal regulations. The Department proposes to make the following changes to ch.
HFS 149:
• Add and revise definitions.
• Increase the standards for eligibility for consideration by the Department as a WIC vendor, including:
1. The vendor demonstrates business integrity.
2. The vendor has an acceptable history with WIC and the Food Stamp Program.
3. The vendor is not delinquent in payment of taxes.
4. The vendor is not an above-50-percent vendor.
5. The vendor purchases WIC infant formula only from a supplier listed on the authorized infant formula list.
6. The vendor has regular, established hours of operation.
• Eliminate specifics about what is on an application for vendor authorization.
• Remove requirement to return incomplete applications to vendors; the state WIC office will work with vendors to complete the application information.
• Clarify vendor responsibilities related to change of ownership. A site visit is required by federal regulation for all initial authorizations, including changes of ownership. The visit can, however, be conducted prior to the legal change, if the vendor will make appropriate assurances that the vendor is accountable for the same information after the sale takes place.
• Consider a store moving within a five mile radius of the closing store a change of location and not a store closing, thus not requiring a new application for authorization.
• Clarify a vendor is required to meet eligibility requirements throughout the vendor's authorization period. If something changes, and the vendor no longer meets the requirements that allowed the vendor to be eligible, the vendor could be disqualified.
• Require vendors to maintain inventory and accounting records for the length of time specified in the agreement and the vendor would make these available as requested.
• Create standards for the use of the WIC logo and acronym.
• Eliminate Class A, B and C designation for vendor violations.
• Incorporate federally mandated sanctions for disqualification of vendors.
• Create discretionary (vs mandatory) sanctions for violations that states can identify.
• Allow forfeitures and corrective plans for some violations by vendors.
• Require civil money penalties in lieu of disqualification if the Department determines that participant access to WIC services is inadequate in the area served by the vendor.
• Allow recoupments and enforcement assessments against vendors.
• Incorporate required sanctions for second, third and subsequent violations by vendors.
• Incorporate Food Stamp Program reciprocal disqualifications for vendors.
• Bar voluntary withdrawal or non-renewal of agreement as an alternative to disqualification of a vendor.
• Specify when a full or abbreviated administrative review may be requested, and those situations where review may not be requested. Allow the Department to summarily suspend a vendor if determined that the violation is a public health emergency.
• Add a new subchapter related to WIC participants and proxies.
• Incorporate mandatory sanctions (1 year disqualification) for participation by a participant in more than one WIC project or clinic at the same time, and the fraudulent receipt of more than $100 in WIC benefits.
• Include mandatory repayment for all benefits received fraudulently by a participant.
• Specify sanctions for 1, 3 and 6 month state-identified violations by a WIC participant or proxy.
• Specify that disqualification applies to the participant, proxy and all of the participant's family members unless the local project determines that a serious health risk would result.
Summary of, and comparison with, existing or proposed federal regulations
The Department operates the WIC Program under a State Plan pursuant to
7 CFR 246.4. The State Plan is a plan of program operation and administration that describes the manner in which the Department implements and operates all aspects of the WIC Program in Wisconsin. The State Plan addresses vendor management including selection and authorization, training and monitoring, compliance investigations, and vendor sanctions that are related to this rule. The State Plan also addresses participant certification and eligibility including dual participation, participant rights and responsibilities, fair hearing procedures, and a sanction system that are related to this rule.
Comparison with rules in adjacent states
Iowa: Iowa Administrative Code 641 IAC 73.19 (135) and 641 IAC 73.8 (135) were revised effective 2006 to incorporate the P.L.
108-265 Child Nutrition and WIC Reauthorization Act of 2004 and subsequent policy and federal regulation revisions. They include the federal requirements related to vendor authorization, responsibilities of vendors, vendor monitoring, participant violations, vendor violations, reciprocal food stamp disqualifications, civil money penalties in lieu of vendor disqualification, approved purchases of infant formula, and elimination of “above 50%" stores. In addition to the violations and sanctions required by regulation, Iowa includes additional requirements for authorization, including a variety of groceries (likely the requirements to be a food stamp authorized store), limited sales from gasoline, alcoholic or tobacco products, regular store hours, and a requirement to order special infant formulas within 48 or 72 hours. The IAC utilizes a point system for assigning sanctions for various violations by vendors and participants.
Minnesota: Minnesota Rule Chapter 4617 was revised in April 2005 and addressed local agencies (not participants), vendors, appeals by vendors and local agencies and vendor applicants, and WIC approved foods. Ch. 4617 also incorporates the P.L.
108-265 and subsequent policy and rule requirements for vendor authorization, responsibilities of vendors, vendor monitoring, vendor violations, reciprocal food stamp disqualifications, civil money penalties in lieu of vendor disqualification, approved purchases of infant formula, and elimination of “above 50%" stores. Added requirement to be authorized to accept food stamps, requires cash registers that generate a receipt and provide a receipt to the participant, regular store hours. Ch. 4617 increased the sanctions for discretionary violations by lengthening the period of disqualification and changing the number of incidents from 3 to 2 before sanctioning, and defines inadequate participant access. Minnesota WIC does not appear to have Rule for participant fraud and abuse; instead it is addressed through program policy and guidance from the state WIC office on a case by case basis.
Illinois: 77 Illinois Administrative Code Ch. X, Part 672, subchapter i was revised effective September 2006 and includes the same federal requirements as stated in Minnesota and Iowa. Additional state requirements include less than 70% gross receipts from the sale of non-alcoholic products; specifies that neither the vendor applicant, vendor, nor any owner of 30% or more ownership shall have been terminated or disqualified from the WIC Program in the previous 3 years. Part 672 has sections on state major violations and sanctions, and state minor violations and sanctions. Illinois does not appear to have Administrative Code for participant fraud and abuse.
Michigan: The Michigan WIC Program does not have administrative rules for WIC; all vendor and participant requirements are either in the vendor contract or in State WIC Program policy.
Summary of factual data and analytical methodologies
1. The 1997 Economic Census – Wisconsin Geographic Series, which is compiled by the U.S. census bureau every 5 years for each year ending in “2" and “7" and is the latest available economic data compiled on businesses located in Wisconsin.
2. Criteria adopted by the Department and approved by the Wisconsin Small Business Regulatory Review Board to determine whether the Department's proposed rules have a significant economic impact on a substantial number of small businesses. Pursuant to the Department's criteria, a proposed rule will have a significant economic impact on a substantial number of small businesses if at least 10% of the businesses affected by the proposed rules are small businesses and if operating expenditures, including annualized capital expenditures, increase by more than the prior year's consumer price index or reduces revenues by more than the prior year's consumer price index. For the purposes of this rulemaking, 2006 is the index year. The consumer price index is compiled by the U.S. Department of Labor, Bureau of Labor Statistics and for 2006 is 3.2%.
3. The Department's WIC vendor and vendor redemption records. Each vendor is placed in a vendor peer group according to the number of cash registers, a valid indicator for the size of store. Small stores are those with 4 or less registers and would be considered a small store.
4. The Wisconsin WIC Program Advisory Committee's Retailer Sub-committee that includes the Wisconsin Grocers Association and retailers representing large and small grocery stores and pharmacies, reviewed and commented on the draft rule.
Initial Regulatory Flexibility Analysis
The Wisconsin WIC Program assigns each vendor (grocery store and pharmacy) to a vendor peer group based on the number of cash registers, a criteria that has been validated as an accurate indicator of the store size. As of July 2007, peer group 1 consisted of 433 grocery stores with 1-4 cash registers, i.e., a small store. The total redemption of the 433 grocery stores in Peer Group 1 for the month of July 2007 was $1,567,237, compared to $1,409,331 for the 222 grocery stores in Peer Group 2 (5-10 registers), and $3,465,249 for the 232 grocery stores in Peer Group 3 (11 or more registers).
All 165 WIC pharmacies are placed in Peer Group 9, regardless of the number of registers, with a July 2007 total redemption of $224,150.
All 9 above-50-percent vendors are placed in Peer Group 7. An above-50-percent vendor is an authorized vendor who derives more than 50 percent of annual food sales revenue from WIC checks or a vendor applicant for initial authorization who estimate they will derive more than 50 percent of annual food sales revenue from WIC checks. There are 6 small stores and 1 pharmacy in the above-50-percent Peer Group. Total redemption for July 2007 was $108,450.
The proposed rules will affect small businesses, however, the proposed rules will not have a significant economic impact on the small businesses that are compliant with this rule. Small stores that do not currently maintain regular established hours of operation may have to increase the time open to at least five days a week for a minimum of two four-hour blocks of time. This requirement may result in an increase in sales that would off-set any increase in costs. The rules codify vendor contract requirements for stores and pharmacies to maintain inventory and accounting records as required under the vendor contract, and to report store prices to the Department. These are not new requirements. No professional skills are required to comply with the rules.
The WIC Program is entirely federally funded. No state funding is used for administrative expenses or for food purchases. It is not anticipated that federal food expenditures will be increased as a result of this rule; in fact, food expenditures should be less when the rule is in place. There would be tighter pricing requirements for above-50-percent vendors, and stronger sanctions for fraud and abuse, including recoupments as a result of overcharging for WIC foods.
Small business regulatory coordinator
Fiscal Impact
The WIC program is entirely federally funded. No state funding is used for administrative expenses or for food purchases. It is not anticipated that federal food expenditures will be increased as a result of this rule; in fact, food expenditures should be less when the rule is in place. There would be tighter pricing requirements for above-50-percent vendors and stronger sanctions for fraud and abuse, including recoupment of overcharging for WIC foods.
There would be an indeterminate state fiscal impact as a result of the expansion of sanctions, but it is anticipated that WIC would increase its existing administration revenues as a result of imposing an enforcement assessment with each recoupment.
There will be no local government impact as a result of this rule. All of the provisions related to vendor sanctions are conducted by the state WIC office and monitoring requirements for the local projects have not changed. Provisions related to participant fraud and abuse are either unchanged from previous policy or lessened; for example, follow-up for participant repayment is now limited to two letters, with additional follow-up to be conducted by the state WIC office if needed.
Copy of Rule
A copy of the full text of the rules and the fiscal estimate can be obtained at no charge from the Wisconsin Administrative Rules Website at
http://adminrules.wisconsin.gov or by contacting the person listed below.
Contact Person
Patti Herrick
WIC Program Director
Room 243, 1 West Wilson Street
Madison, WI 53701
Phone: 608-266-3821
Fax: 608-266-3125
Notice of Hearing
Transportation
NOTICE IS HEREBY GIVEN that pursuant to ss.
110.06,
110.20 (9), and
227.11, Stats., interpreting s.
110.20, Stats., the Department of Transportation will hold a public hearing on
February 4, 2008 at the Hill Farms State Transportation Building,
Room 144-B, 4802 Sheboygan Avenue, Madison, WI, at
1:00 PM, to consider the amendment of ch.
Trans 131, Wisconsin Administrative Code, relating to the vehicle emission inspection program.
Parking for persons with disabilities and an accessible entrance are available.
Copy of Rule
A copy of the proposed rule may be obtained upon request from Steve Hirshfeld, Department of Transportation, Bureau of Vehicle Services, Room 253, P. O. Box 7909, Madison, WI 53707-7909. You may also contact Steve Hirshfeld by phone at (608) 266-2267 or via e-mail:
stephen.hirshfeld@dot.state.wi.us.
Analysis Prepared by the Department of Transportation
Statutes interpreted
