Section 670. Full administrative review

A. Authorized retailers and applicants shall be offered an opportunity to request a full administrative review only for the adverse action cited in subsection O of this section.

B. The retailer or applicant has 15 calendar days from the date of receipt of the denial notice or the disqualification letter, either by letter or an electronic format, to request a full administrative review.

C. The request for the full administrative review may be mailed by US mail, sent by facsimile transmission or sent via email to the state agency. If the request is mailed, it must be postmarked within 15 calendar days from the date of receipt of letter or electronic notification from the state agency, whichever comes first.

D. The retailer or applicant should indicate whether he intends to be represented by an attorney when the full administrative review request is made. This does not preclude the retailer or applicant from seeking legal counsel at any time. At least five days prior to the scheduled full administrative review, the retailer or applicant must provide the state agency with copies of any written information that it wishes to use during the review and names of witnesses that it will call. Failure to provide the state agency with these items may result in rescheduling the full administrative review or the exclusion of documents and witnesses from the full administrative review.

E. Within 30 days of receipt of the retailer's or applicant's request for a full administrative review, after consulting with the retailer or applicant and the adjudication officer, the state agency shall confirm a date, time, and place for the review. For authorized retailers and applicants, the review shall be scheduled to take place within 60 calendar days after the written request is received by the state agency, unless otherwise agreed to by the parties.

F. Failure to attend the scheduled review shall lead to the retailer forfeiting its rights to any further administrative reviews.

G. The retailer or applicant will have one opportunity to reschedule the full administrative review's date or time. All requests to reschedule the review date or time must be submitted in writing at least 24 hours before the scheduled review date unless good cause can be shown as determined by the adjudication officer. Rescheduled reviews shall take place within four weeks of the originally scheduled date unless otherwise agreed to by the parties.

H. If the retailer representative is more than 45 minutes late to the review, this shall be considered a "no show" unless he can show good cause as determined by the adjudication officer.

I. A full administrative review shall be conducted by an adjudication officer who is employed by the Virginia Department of Health. The adjudication officer shall ensure that administrative actions taken by the WIC Program are consistently and fairly applied and that those administrative actions comply with established policies, procedures, and federal and state statutes and regulations. A representative from the state agency shall present its case to the adjudication officer and retailer or applicant representative. Conversely, the retailer owner or designated representative, which may include legal counsel, shall present its case to the adjudication officer.

J. All full administrative reviews shall be held in Richmond, Virginia.

K. After a full administrative review is held, the state WIC director shall provide written notification of the adjudication officer's decision, including the basis for the decision, to the applicant or authorized retailer within 90 calendar days of the date of receipt of the full administrative appeal review request, unless otherwise agreed to by the parties involved. This notification will also be sent to the appropriate USDA Food and Nutrition Services office.

L. Authorized retailers being disqualified may continue to deposit WIC food instruments until a decision has been rendered by the adjudication officer. The adverse action effective date shall be postponed by the state agency pending the outcome of the review.

M. In accordance with 7 CFR 246.18, if an authorized retailer does not request a full administrative review, then disqualification becomes effective 15 calendar days after the retailer receives the state agency's written disqualification letter.

N. An authorized retailer being retained in lieu of disqualification for a state agency violation may elect to voluntarily withdraw from the WIC Program rather than pay a mandated civil monetary penalty . If the retailer voluntarily withdraws and does not pay the civil monetary penalty, then a disqualification status shall be documented in the state agency's records. The disqualification period may range from one to six years, depending on the type of sanctions and violations documented by the state agency.

O. The state agency shall provide a full administrative review to retailers or applicants, upon request, for the following adverse actions pursuant to 7 CFR 246.18:

1. Denial of authorization based on the application of the retailer selection criteria for minimum variety and quantity of authorized supplemental foods or on a determination that the retailer is attempting to circumvent a sanction (7 CFR 246.12);

2. Denial of authorization based upon the retailer selection criteria for business integrity or for a current Supplemental Nutrition Assistance Program disqualification or civil money penalty for hardship (7 CFR 246.12);

3. Denial of authorization based on a state agency established retailer selection criteria if the basis of the denial is a WIC retailer sanction or a Supplemental Nutrition Assistance Program withdrawal of authorization or disqualification;

4. Denial of authorization based on the state agency's retailer limiting criteria (7 CFR 246.12);

5. Denial of authorization because a retailer submitted its application outside the timeframes during which applications are accepted or processed as established by the state agency under 7 CFR 246.12;

6. Termination of a retailer agreement because of a change in ownership, location, or cessation of operations (7 CFR 246.12);

7. Termination of a retailer agreement for cause;

8. Disqualification based on a trafficking conviction (7 CFR 246.12);

9. Disqualification based on the imposition of a Supplemental Nutrition Assistance Program civil monetary penalty for hardship (7 CFR 246.12);

10. Disqualification or civil monetary penalty imposed in lieu of disqualification based on a mandatory sanction imposed by another WIC state agency (7 CFR 246.12);

11. Imposition of a fine or a civil monetary penalty in lieu of disqualification;

12. Denial of authorization based on the application of the retailer selection criteria for competitive price;

13. The application of the state agency's retailer peer group criteria and the criteria used to identify retailers that are above 50% retailers or comparable to above 50% retailers;

14. Denial of an application based on a determination of whether an applicant retailer is currently authorized by the Supplemental Nutrition Assistance Program;

15. A civil monetary penalty imposed in lieu of disqualification based on a Supplemental Nutrition Assistance Program disqualification under 7 CFR 246.12; and

16. Disqualification unless listed in subsection P of this section.

P. The state agency shall not provide a full administrative review to retailers that appeal the following actions, pursuant to 7 CFR 246.18:

1. The validity or appropriateness of the state agency's retailer limiting or selection criteria or retailer selection criteria for minimum variety and quantity of supplemental foods, business integrity, and current Supplemental Nutrition Assistance Program disqualification or civil monetary penalty for hardship (7 CFR 246.12);

2. The validity or appropriateness of the state agency's criteria for competitive price, including peer group criteria and the criteria used to identify retailers that are above 50% retailers or comparable to above 50% retailers;

3. The validity or appropriateness of the state agency's participant access criteria and the state agency's participant access determinations;

4. The state agency's determination whether a retailer had an effective policy and program in effect to prevent trafficking and that the ownership of the retailer was not aware of, did not approve of, and was not involved in the conduct of the violation (7 CFR 246.12);

5. Denial of authorization if the state agency's retailer authorization is subject to the procurement procedures applicable to the state agency;

6. The expiration of the retailer's agreement;

7. Disputes regarding food instrument payments and retailer claims other than the opportunity to justify or correct a retailer overcharge or other error as permitted by (7 CFR 246.12);

8. Disqualification of a retailer as a result of disqualification from the Supplemental Nutrition Assistance Program (7 CFR 246.12);

9. The state agency's determination to include or exclude an infant formula manufacturer, wholesaler, distributor, or retailer from the list required pursuant to 7 CFR 246.12;

10. The state agency's determination whether to notify a retailer in writing when an investigation reveals an initial violation for which a pattern of violations must be established in order to impose a sanction; and

11. The validity or appropriateness of the state agency's prohibition of incentive items and the state agency's denial of an above 50% retailer's request to provide an incentive item to customers pursuant to 7 CFR 246.12.

Q. A full administrative review request shall not be denied or dismissed unless:

1. The request to the state agency is not postmarked or received within 15 calendar days of the applicant or authorized retailer's receipt of the notice of disqualification or adverse action;

2. The request to the state agency is submitted by an individual who does not have the legal or delegated authority to represent the applicant or authorized retailer;

3. The retailer or authorized representative withdraws the request in writing;

4. The retailer or authorized representative fails to appear at the scheduled review date and time without good cause as determined by the adjudication officer; or

5. The request for a full administrative review is not eligible for this consideration based on the specific exclusion criteria outlined in subsection P of this section.

Historical Notes

Derived from Volume 24, Issue 19, eff. May 26, 2008; amended, Virginia Register Volume 25, Issue 22, eff. July 6, 2009; Volume 26, Issue 10, eff. January 18, 2010; Volume 29, Issue 12, eff. March 13, 2013.

Statutory Authority

§ 32.1-12 of the Code of Virginia; 7 CFR Part 246.