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Food and Nutrition Service, USDA § 246.18 right to disallow and recover an appropriate amount after fully considering any recommended disallowances resulting from an audit which may be conducted later. wwoods2 on DSK1DXX6B1PROD with CFR [50 FR 6121, Feb. 13, 1985, as amended at 71 FR 56731, Sept. 27, 2006] § 246.18 Administrative review of State agency actions. (a) Adverse actions subject to administrative reviews—(1) Vendor appeals—(i) Adverse actions subject to full administrative reviews. Except as provided elsewhere in paragraph (a)(1) of this section, the State agency must provide full administrative reviews to vendors that appeal the following adverse actions: (A) Denial of authorization based on the application of the vendor selection criteria for minimum variety and quantity of authorized supplemental foods (§ 246.12(g)(3)(i)), or on a determination that the vendor is attempting to circumvent a sanction (§ 246.12(g)(6)); (B) Termination of an agreement for cause; (C) Disqualification; and (D) Imposition of a fine or a civil money penalty in lieu of disqualification. (ii) Adverse actions subject to abbreviated administrative reviews. The State agency must provide abbreviated administrative reviews to vendors that appeal the following adverse actions, unless the State agency decides to provide full administrative reviews for any of these types of adverse actions: (A) Denial of authorization based on the vendor selection criteria for business integrity or for a current Food Stamp Program disqualification or civil money penalty for hardship (§ 246.12(g)(3)(ii) and (g)(3)(iii)); (B) Denial of authorization based on the application of the vendor selection criteria for competitive price (§ 246.12(g)(4)); (C) The application of the State agency’s vendor peer group criteria and the criteria used to identify vendors that are above-50-percent vendors or comparable to above-50-percent vendors; (D) Denial of authorization based on a State agency-established vendor selection criterion if the basis of the de- nial is a WIC vendor sanction or a Food Stamp Program withdrawal of authorization or disqualification; (E) Denial of authorization based on the State agency’s vendor limiting criteria (§ 246.12(g)(2)); (F) Denial of authorization because a vendor submitted its application outside the timeframes during which applications are being accepted and processed as established by the State agency under § 246.12(g)(8); (G) Termination of an agreement because of a change in ownership or location or cessation of operations (§ 246.12(h)(3)(xvii)); (H) Disqualification based on a trafficking conviction (§ 246.12(l)(1)(i)); (I) Disqualification based on the imposition of a Food Stamp Program civil money penalty for hardship (§ 246.12(l)(2)(ii)); and (J) Disqualification or a civil money penalty imposed in lieu of disqualification based on a mandatory sanction imposed by another WIC State agency (§ 246.12(l)(2)(iii)). (K) A civil money penalty imposed in lieu of disqualification based on a Food Stamp Program disqualification under § 246.12(l)(1)(vii) and, (L) Denial of an application based on a determination of whether an applicant vendor is currently authorized by the Food Stamp Program. (iii) Actions not subject to administrative reviews. The State agency may not provide administrative reviews pursuant to this section to vendors that appeal the following actions: (A) The validity or appropriateness of the State agency’s vendor limiting criteria (§ 246.12(g)(2)) or vendor selection criteria for minimum variety and quantity of supplemental foods, business integrity, and current Supplemental Nutrition Assistance Program disqualification or civil money penalty for hardship (§ 246.12(g)(3)); (B) The validity or appropriateness of the State agency’s selection criteria for competitive price (§ 246.12(g)(4)), including, but not limited to, vendor peer group criteria and the criteria used to identify vendors that are above-50-percent vendors or comparable to above50-percent vendors; (C) The validity or appropriateness of the State agency’s participant access 435 VerDate Mar2010 08:32 Mar 17, 2011 Jkt 223015 PO 00000 Frm 00445 Fmt 8010 Sfmt 8010 Y:\SGML\223015.XXX 223015 wwoods2 on DSK1DXX6B1PROD with CFR § 246.18 7 CFR Ch. II (1–1–11 Edition) criteria and the State agency’s participant access determinations; (D) The State agency’s determination to include or exclude an infant formula manufacturer, wholesaler, distributor, or retailer from the list required pursuant to § 246.12(g)(11); (E) The validity or appropriateness of the State agency’s prohibition of incentive items and the State agency’s denial of an above-50-percent vendor’s request to provide an incentive item to customers pursuant to § 246.12(h)(8); (F) The State agency’s determination whether to notify a vendor in writing when an investigation reveals an initial violation for which a pattern of violations must be established in order to impose a sanction, pursuant to § 246.12(l)(3); (G) The State agency’s determination whether a vendor had an effective policy and program in effect to prevent trafficking and that the ownership of the vendor was not aware of, did not approve of, and was not involved in the conduct of the violation (§ 246.12(l)(1)(i)(B)); (H) Denial of authorization if the State agency’s vendor authorization is subject to the procurement procedures applicable to the State agency; (I) The expiration of a vendor’s agreement; (J) Disputes regarding food instrument or cash-value voucher payments and vendor claims (other than the opportunity to justify or correct a vendor overcharge or other error, as permitted by § 246.12(k)(3); and (K) Disqualification of a vendor as a result of disqualification from the Food Stamp Program (§ 246.12(l)(1)(vii)). (2) Effective date of adverse actions against vendors. The State agency must make denials of authorization and disqualifications imposed under § 246.12(l)(1)(i) effective on the date of receipt of the notice of adverse action. The State agency must make all other adverse actions effective no earlier than 15 days after the date of the notice of the adverse action and no later than 90 days after the date of the notice of adverse action or, in the case of an adverse action that is subject to administrative review, no later than the date the vendor receives the review decision. (3) Local agency appeals—(i) Adverse actions subject to full administrative reviews. Except as provided in paragraph (a)(3)(ii) of this section, the State agency must provide full administrative reviews to local agencies that appeal the following adverse actions: (A) Denial of a local agency’s application; (B) Disqualification of a local agency; and (C) Any other adverse action that affects a local agency’s participation. (ii) Actions not subject to administrative reviews. The State agency may not provide administrative reviews pursuant to this section to local agencies that appeal the following actions: (A) Expiration of the local agency’s agreement; and (B) Denial of a local agency’s application if the State agency’s local agency selection is subject to the procurement procedures applicable to the State agency; (iii) Effective date of adverse actions against local agencies. The State agency must make denials of local agency applications effective immediately. The State agency must make all other adverse actions effective no earlier than 60 days after the date of the notice of the adverse action and no later than 90 days after the date of the notice of adverse action or, in the case of an adverse action that is subject to administrative review, no later than the date the local agency receives the review decision. (4) Farmer appeals—(i) Adverse Actions. The State agency shall provide a hearing procedure whereby farmers adversely affected by certain actions of the State agency may appeal those actions. A farmer may appeal an action of the State agency denying its application to participate, imposing a sanction, or disqualifying it from participation in the program. Expiration of an agreement is not subject to appeal. (ii) Effective date of adverse actions against farmers. The State agency must make denials of authorization and disqualifications effective on the date of receipt of the notice of adverse action. The State agency must make all other adverse actions effective no earlier than 15 days after the date of the notice of the adverse action and no later 436 VerDate Mar2010 08:32 Mar 17, 2011 Jkt 223015 PO 00000 Frm 00446 Fmt 8010 Sfmt 8010 Y:\SGML\223015.XXX 223015 wwoods2 on DSK1DXX6B1PROD with CFR Food and Nutrition Service, USDA § 246.18 than 90 days after the date of the notice of adverse action or, in the case of an adverse action that is subject to administrative review, no later than the date the farmer receives the review decision. (b) Full administrative review procedures. The State agency must develop procedures for a full administrative review of the adverse actions listed in paragraphs (a)(1)(i), (a)(3) and (a)(4) of this section. At a minimum, these procedures must provide the vendor, farmer or local agency with the following: (1) Written notification of the adverse action, the procedures to follow to obtain a full administrative review and the cause(s) for and the effective date of the action. When a vendor is disqualified due in whole or in part to violations in § 246.12(l)(1), such notification must include the following statement: ‘‘This disqualification from WIC may result in disqualification as a retailer in the Food Stamp Program. Such disqualification is not subject to administrative or judicial review under the Food Stamp Program.’’ (2) The opportunity to appeal the adverse action within a time period specified by the State agency in its notification of adverse action. (3) Adequate advance notice of the time and place of the administrative review to provide all parties involved sufficient time to prepare for the review. (4) The opportunity to present its case and at least one opportunity to reschedule the administrative review date upon specific request. The State agency may set standards on how many review dates can be scheduled, provided that a minimum of two review dates is allowed. (5) The opportunity to cross-examine adverse witnesses. When necessary to protect the identity of WIC Program investigators, such examination may be conducted behind a protective screen or other device (also referred to as an ‘‘in camera’’ examination). (6) The opportunity to be represented by counsel. (7) The opportunity to examine prior to the review the evidence upon which the State agency’s action is based. (8) An impartial decision-maker, whose determination is based solely on whether the State agency has correctly applied Federal and State statutes, regulations, policies, and procedures governing the Program, according to the evidence presented at the review. The State agency may appoint a reviewing official, such as a chief hearing officer or judicial officer, to review appeal decisions to ensure that they conform to approved policies and procedures. (9) Written notification of the review decision, including the basis for the decision, within 90 days from the date of receipt of a vendor’s request for an administrative review, and within 60 days from the date of receipt of a local agency’s request for an administrative review. These timeframes are only administrative requirements for the State agency and do not provide a basis for overturning the State agency’s adverse action if a decision is not made within the specified timeframe. (c) Abbreviated administrative review procedures. Except when the State agency decides to provide full administrative reviews for the adverse actions listed in paragraph (a)(1)(ii) of this section, the State agency must develop procedures for an abbreviated administrative review of the adverse actions listed in paragraph (a)(1)(ii) of this section. At a minimum, these procedures must provide the vendor with the following: (1) Written notification of the adverse action, the procedures to follow to obtain an abbreviated administrative review, the cause(s) for and the effective date of the action, and an opportunity to provide a written response; and (2) A decision-maker who is someone other than the person who rendered the initial decision on the action and whose determination is based solely on whether the State agency has correctly applied Federal and State statutes, regulations, policies, and procedures governing the Program, according to the information provided to the vendor concerning the cause(s) for the adverse action and the vendor’s response; and (3) Written notification of the review decision, including the basis for the decision, within 90 days of the date of receipt of the request for an administrative review. This timeframe is only an 437 VerDate Mar2010 08:32 Mar 17, 2011 Jkt 223015 PO 00000 Frm 00447 Fmt 8010 Sfmt 8010 Y:\SGML\223015.XXX 223015 § 246.19 7 CFR Ch. II (1–1–11 Edition) administrative requirement for the State agency and does not provide a basis for overturning the State agency’s adverse action if a decision is not made within the specified timeframe. (d) Continuing responsibilities. Appealing an action does not relieve a local agency, farmer or vendor that is permitted to continue program operations while its appeal is in process from the responsibility of continued compliance with the terms of any written agreement with the State agency. (e) Finality and effective date of decisions. The State agency procedures must provide that review decisions rendered under both the full and abbreviated review procedures are the final State agency action. If the adverse action under review has not already taken effect, the State agency must make the action effective on the date of receipt of the review decision by the vendor, farmer or local agency. (f) Judicial review. If the review decision upholds the adverse action against the vendor, farmer or local agency, the State agency must inform the vendor, farmer or local agency that it may be able to pursue judicial review of the decision. [65 FR 83266, Dec. 29, 2000, as amended at 70 FR 71724, Nov. 29, 2005; 73 FR 68998, Dec. 6, 2007; 73 FR 21811, Apr. 23, 2008; 74 FR 557, Jan. 6, 2009; 74 FR 51759, Oct. 8, 2009] wwoods2 on DSK1DXX6B1PROD with CFR Subpart F—Monitoring and Review § 246.19 Management evaluation and monitoring reviews. (a) Management evaluations and reviews. (1) FNS and each State agency shall establish a management evaluation system in order to assess the accomplishment of Program objectives as provided under this part, FNS guidelines, instructions, and the FederalState agreement with the Department. FNS will provide assistance to States in discharging this responsibility, establish standards and procedures to determine how well the objectives of this part are being accomplished, and implement sanction procedures as warranted by State Program performance. (2) The State agency must submit a corrective action plan, including implementation timeframes, within 60 days of receipt of an FNS management evaluation report containing a finding that the State agency did not comply with program requirements. If FNS determines through a management evaluation or other means that during a fiscal year the State agency has failed, without good cause, to demonstrate efficient and effective administration of its program, or has failed to comply with its corrective action plan, or any other requirements contained in this part or the State Plan, FNS may withhold an amount up to 100 percent of the State agency’s nutrition services and administration funds for that year. (3) Sanctions imposed upon a State agency by FNS in accordance with this section (but not claims for repayment assessed against a State agency) may be appealed in accordance with the procedures established in § 246.22. Before carrying out any sanction against a State agency, the following procedures will be followed: (i) FNS will notify the Chief State Health Officer or equivalent in writing of the deficiencies found and of FNS’ intention to withhold nutrition services and administration funds unless an acceptable corrective action plan is submitted by the State agency to FNS within 60 days after mailing of notification. (ii) The State agency shall develop a corrective action plan with a schedule according to which the State agency shall accomplish various actions to correct the deficiencies and prevent their future recurrence. (iii) If the corrective action plan is acceptable, FNS will notify the Chief State Health Officer or equivalent in writing within 30 days of receipt of the plan. The letter approving the corrective action plan will describe the technical assistance that is available to the State agency to correct the deficiencies. The letter will also advise the Chief State Health Officer or equivalent of the sanctions to be imposed if the corrective action plan is not implemented according to the schedule set forth in the approved plan. (iv) Upon notification from the State agency that corrective action as been taken, FNS will assess such action, and, if necessary, will perform a followup review to determine if the noted deficiencies have been corrected. FNS 438 VerDate Mar2010 08:32 Mar 17, 2011 Jkt 223015 PO 00000 Frm 00448 Fmt 8010 Sfmt 8010 Y:\SGML\223015.XXX 223015