WISCONSIN DEPARTMENT OF HEALTH SERVICES
PROPOSED ORDER TO ADOPT PERMANENT RULES
The Wisconsin Department of Health Services proposes an order to repeal DHS 149.08 (3) (b) and (4), 149.18 (4) to amend DHS 149.01 (intro.), 149.02 (intro.), 149.04 and (title) and (intro.), 149.06 (1) (a) to (c), (2), (3) (c), 149.08 (3) (f), (k), (6) (a) and (b), (7), (8), (10), 149.09 (1) and (2), 149.10 (1) (a) 1., (2) (intro.), (a) and (b), (3) (intro.), (a), (b) 2. to 6., (4) (intro.), (a) and (b), (5), (6), 149.13 (intro.), 149.15 to 149.17, 149.18 (3) (b) to (i), (a) 1. & 2., (b), (c) 1 c. and 3., 149 Subch. IV (title), 149.21 (1) to (3), 149.22 (1) and (2),149.23, 149.25 (1) to (4), (5) (title), (intro.), (a) to (d), and (6), repeal and recreate DHS 149.03, 149.05, 149.07 (1) (d) and (e), (2) to (4), 149.08 (2) (a), (b), (d), (3) (a), (d), (h), (L) and (m), (6) (b) (Note), (10) (Note), 149.10 (7), 149.11 (1) and (2), and 149.12, 149.14, 149.18 (title),(2), (a) to (c), and (Note), 149.20, and 149.24; to create DHS 149.06 (1) (Note), 149.07 (1) (c) 5., 149.08 (1) (d), (2) (e) to (h), 149.08 (3) (am), (5) (d), 149.085 and 149.135, relating to the special supplemental nutrition program for women, infants and children (WIC) .
RULE SUMMARY
Statute interpreted
Statutory authority
Explanation of agency authority
Section 253.06, Stats. directs the department to set minimum qualifications for participation or authorization, standards of operation, minimum requirements, and procedures for approving or denying an application, including appeal procedures for the state special supplemental nutrition program for women, infants and children (WIC). Explicit rulemaking authority is given in s. 253.06 (5) (a), Stats. Related statute or rule
Title 7 CFR Part 246 – Special Supplemental Nutrition Program for Women, Infants and Children (WIC) Plain language analysis
WIC is a federal grant program providing funds to states to provide nutritious foods, nutrition education and referrals to health and other social services to low-income pregnant, breastfeeding, and non-breastfeeding postpartum women, and to infants and children up to age five who are found to be at nutritional risk. The department proposes to update ch. DHS 149 to achieve consistency with Title 7 CFR Part 246, remove obsolete requirements, and to improve prevention and detection of fraud, waste, and abuse. Specifically this includes adding references to the U.S. Department of Agriculture (USDA), Food and Nutrition Service (FNS) Electronic Benefit Transfer (EBT) operating rules, removing outdated provisions, and clarifying responsibilities to improve program integrity for authorized retail grocery stores, convenience stores and pharmacies, also known as vendors. The current rule addresses benefit redemption practices using vendor stamps, paper checks, drafts or vouchers that are no longer in use in Wisconsin. The program changes for EBT, implemented statewide in 2015, include technology requirements to ensure WIC participants receive the correct food benefits, retail point of sale system requirements to ensure the vendors are reimbursed for providing the foods, and improved data mining capability from the electronic transaction. The WIC state agency is required to publish a list of infant formula suppliers authorized to provide infant formula to vendors annually. Currently the only requirement is a license with the state. In order to protect Wisconsin infants, the proposed rule adds standards of operation and minimum requirements for infant formula suppliers in addition to a license. The existing rule has not been substantially updated since 2008 and is not consistent with the federal rule. The updated rule will provide consistency for regulatory enforcement of program requirements and provide improved tools to prevent and detect fraud, waste, and abuse. The WIC program utilizes a contract agreement and a vendor procedure manual for authorized vendors. That information needs to be based in administrative rule for enforcement purposes. The department or designated WIC state agency, WIC vendors, and WIC vendor applicants will be affected by this rule. Summary of, and comparison with, existing or proposed federal regulations
The existing federal regulation, Title 7 CFR Part 246, was amended on July 13, 2016, to include EBT language, additional requirements, and accepted practices that are not currently provided in ch. DHS 149. The proposed rule will also remove obsolete practices and terminology. Comparison with rules in adjacent states
Illinois:
The state of Illinois administrative rule was last updated in 2006 and is comparable to the current Wisconsin rule. Illinois has not implemented WIC EBT as of April 10, 2019; therefore, it is still current. Illinois Administrative Code, Title 77: Public Health, Ch. X: Department of Human Services, Subchapter i: Maternal and Child Health, Part 672 WIC Vendor Management Code
Iowa:
Iowa Administrative Code, 641: Public Health, Ch. 73: The Special Supplemental Nutrition Program for Women, Infants and Children (WIC) adopts by reference federal regulations in Title 7 CFR Part 246, WIC EBT Operating Rules, WIC EBT Technical Implementation Guide, FNS Handbook 901, and FNS Instructions including any additional amendments, last updated 1/1/2017. Iowa implemented WIC EBT in 2016 and has adopted by reference the federal requirements that Wisconsin is proposing to update. Michigan:
Michigan Public Health Code: Act 368 of 1978, ch. 333, sec. 2221 provides authority which is referenced in the Michigan WIC Vendor Contract and Certification. The vendor agrees to comply with federal and state statutes, rules, regulations, policies and procedures, including USDA regulations at 7 CFR 246.1 et. seq. similar to Wisconsin. Michigan does not have administrative rules that specifically mention the federal requirements, as amended. Michigan fully implemented WIC EBT in 2010 and has been applying the federal language Wisconsin is proposing to add since 2016. Minnesota:
Minnesota Administrative Rules, chapter 4617, WIC Program was published Oct 2007. Minnesota is currently implementing WIC EBT but has not updated the administrative rule as of April 10, 2019.
Summary of factual data and analytical methodologies
Title 7 Part 246 was updated March 31, 2016, and the final rule for Special Supplemental Nutrition Program for Women, Infants and Children (WIC): Implementation of Electronic Benefit Transfer- Related Provisions became effective May 2, 2016. An advisory committee was created, consisting of representatives from Wisconsin Grocers’ Association, Emprexel LLC, SD Services LTD, Meijer Corp, Festival Foods, Hansens IGA, Walgreens, and Lomeli Butcher Shop. The Advisory Committee met on March 25, 2019.
Analysis and supporting documents used to determine effect on small business
The Department published a solicitation in the Administrative Register, requesting comments on the economic impact of the proposed rule, from August 12th to August 26th, 2019
Effect on small business
Please see economic impact analysis.
Agency contact person
Carrie Coenen, (608) 267-9744, P.O. Box 2659, 1 W. Wilson Street, Madison, WI 53701-2659, carrie.coenen@wi.gov Statement on quality of agency data
The data used by the Department to prepare these proposed rules and analysis comply with s. 227.14 (2m), Wis. Stats. Place where comments are to be submitted and deadline for submission
Comments may be submitted to the agency contact person that is listed above until the deadline given in the upcoming notice of public hearing. The notice of public hearing and deadline for submitting comments will be published in the Wisconsin Administrative Register and to the department’s website, at https://www.dhs.wisconsin.gov/rules/permanent.htm. Comments may also be submitted through the Wisconsin Administrative Rules Website, at: https://docs.legis.wisconsin.gov/code/chr/active. RULE TEXT
SECTION 1. DHS 149.01 (intro.) is amended to read:
DHS 149.01 (intro.) Authority and purpose. This chapter is adopted pursuant to ss. 46.016, 46.028, 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 establishes operation standards for infant formula suppliers. 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. SECTION 2. DHS 149.02 (intro.) is amended to read:
DHS 149.02 (intro.) Applicability. This chapter applies to applicants for WIC vendor authorization, authorized vendors, applicants for direct distribution center authorization, direct distribution centers, WIC participants, applicants for WIC program benefits, applicants for infant formula supplier authorization, and persons serving as proxies for participants approved infant formula suppliers.
SECTION 3: DHS 149.03 is repealed and recreated to read:
DHS 149.03 (1) “Above-50-percent vendor" means a vendor that derives more than 50 percent of annual food sales revenue from WIC food instruments. It includes vendor applicants applying for initial authorization that estimate they will derive more than 50 percent of annual food sales revenue from WIC food instruments.
DHS 149.03 (2) “Agreement" or “Vendor Agreement” means the document or electronic record entered into by a vendor and the department that contains the terms and conditions under which a vendor or direct distribution center is authorized to provide approved food in exchange for a WIC food instrument.
DHS 149.03 (3) “Approved food" or “authorized supplemental food” has the meaning provided in s. 253.06 (1) (am), Stats. DHS 149.03 (4) “Authorized infant formula supplier list" means the list of wholesalers, distributors, retailers, and manufacturers approved by the department to provide approved infant formula to vendors and direct distribution centers.
DHS 149.03 (5) ”Cardholder” means a person in possession of a food instrument and attendant personal identification number.
DHS 149.03 (6) “Change of ownership" means the transfer of the right to control the assets or management of a vendor or direct distribution center, or any majority changes in ownership interest.
DHS 149.03 (7) “Civil money penalty" means a monetary penalty imposed on a vendor in lieu of disqualification under 7 CFR 246.12 (l) (1) (ix) and (x). DHS 149.03 (8) “Conditional authorization” means additional terms and conditions imposed by the department, including restrictions due to a relationship with an individual with an unacceptable history with WIC or SNAP, or a family member participant.
DHS 149.03 (9) “Contract period" means the period of time stated in the agreement that a vendor or direct distribution center is authorized to provide approved food in exchange for a WIC food instrument.
DHS 149.03 (10) “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 (11) “Department" means the Wisconsin department of health services.
DHS 149.03 (12) “Direct distribution center" means an entity, other than a vendor, that is under contract with the department or a local agency under s. 253.06 (3m), Stats., to distribute approved food to participants. DHS 149.03 (13) “Disqualification" means the act by the department of ending WIC participation of a vendor, direct distribution center, infant formula supplier, or participant because of a program violation.
DHS 149.03 (14) “EBT” or “Electronic benefit transfer system” has the meaning provided in s. 253.06 (1), Stats. DHS 149.03 (15) ”EBT-capable” means a cash register system or payment device, approved by the department, that can accurately and securely obtain the WIC benefit balance associated with a food instrument, maintain the necessary files, such as the approved product list, and successfully complete WIC transactions.
DHS 149.03 (16) “Enforcement assessment" means the amount added to a forfeiture or recoupment required under s. 253.06 (5) (c), Stats. DHS 149.03 (17) “Family" means a household or economic unit composed of a person or group of persons, related or unrelated who usually live together and whose production of income and consumption of goods are related. Exceptions include residents of a homeless facility or an institution shall not be considered as members of a single family. A foster child is counted as a separate family unit of one.
DHS 149.03 (18) “Food instrument” has the meaning provided in s. 253.06 (1), Stats. DHS 149.03 (19) “Food sales" means the sales of all foods that are eligible items under SNAP.
DHS 149.03 (20) “Forfeiture" means the sum of money required to be paid to the department as a result of a vendor violation as provided in s. 253.06 (5) (b) (4), Stats. DHS 149.03 (21) “Grocery store" means a retail store, or a store authorized by SNAP as a specialty store, that sells a general line of food such as breads, cereals, fruits and vegetables, meats, fish, poultry, and dairy products.
DHS 149.03 (22) “Incident” means one or more compliance buys, as defined in 7 CFR 246.2, conducted on the same date, or one sub-category level designation within the approved product list (APL) as used in an inventory audit, or a program violation observed on one date for discretionary sanctions. DHS 149.03 (23) “Initial authorization" means the authorization of a specific business entity to serve as a vendor at a designated location.
DHS 149.03 (24) “Inventory audit” means the examination of invoices or other proofs of purchase to determine whether a vendor has purchased sufficient quantities of approved foods compared to valid claims for payment.
DHS 149.03 (26) “Local agency" means an entity that has a contract with the department to provide WIC services including preauthorization site visits, eligibility determination, WIC benefit issuance, and nutrition counseling for participants.
DHS 149.03 (27) “Local agency clinic" means a site established by a local agency where WIC participants receive services including the local agency main office or its satellite locations.
DHS 149.03 (28) “Maximum food price" means the maximum amount a vendor within each vendor peer group may charge for an approved food item or for a standardized combination of foods.
DHS 149.03 (29) “Minimum stock requirement" means the food items, categories, approved sizes and quantities of foods that vendors are required to maintain in the customer area as specified in the vendor manual and stock price survey.
DHS 149.03 (30) “Non-sale price" means the price of an item that has not been reduced for a limited time.
DHS 149.03 (31) “Preauthorization site visit" means the on-site review of the vendor to verify that the vendor meets WIC program requirements, including minimum stock requirements, pricing, freshness, and cleanliness.
DHS 149.03 (32) “Participant" means a person who is eligible for and receives services under s. 253.06, Stats., including an infant, child under age 5, and a pregnant, breastfeeding, or postpartum woman within six months of delivery. DHS 149.03 (33) “Pattern” means two or more documented incidents subject to discretionary sanctions.
DHS 149.03 (34) “Pharmacy" means an establishment that is licensed to operate as a pharmacy under s. 450.06, Stats. “Pharmacy" includes a person 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 (35) “SNAP" means the federal Supplemental Nutrition Assistance Program under 7 USC 2011 to 2029, formerly known as Food Stamp Program, and known in Wisconsin as FoodShare Program. DHS 149.03 (36) “Sanction" means a penalty imposed by the local agency or department on a vendor, direct distribution center, infant formula supplier or participant because of a violation of this chapter and includes denial of an application, termination of authorization for a vendor or termination of the contract for a direct distribution center, disqualification, recoupment, forfeiture, enforcement assessments under s. 253.06 (5) (b), Stats., or civil money penalties. DHS 149.03 (37) “Standardized combination of foods" means a group of approved foods selected by the department and used for cost containment and vendor eligibility.
DHS 149.03 (38) “Stock price survey" means the department form used to record current vendor non-sale shelf prices for approved foods, which must be submitted with a vendor application when requested by the department.
(Note) The stock price survey may be obtained from the WIC vendor website at http://www.dhs.wisconsin.gov/wic/vendor/application/htm.
DHS 149.03 (39) “USDA" means the United States department of agriculture.
DHS 149.03 (40) “Vendor" means a sole proprietorship, partnership, cooperative association, corporation, or other business entity operating one or more grocery stores or pharmacies authorized by the department to provide approved foods to participants under a retail food delivery system. Each location operated by a business entity constitutes a separate vendor and must be authorized separately from other stores operated by the business entity.
DHS 149.03 (41) “Vendor authorization” means the determination by the department that assesses, selects, and then enters into an agreement with a grocery store or pharmacy that applies or reapplies to be authorized as a vendor.
