WSR 00-03-074

PROPOSED RULES

DEPARTMENT OF HEALTH


[ Filed January 19, 2000, 9:53 a.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 98-14-117.

Title of Rule: Chapter 246-780 WAC, WIC farmers' market nutrition program.

Purpose: The rule needs to be revised to comply with regulatory reform and to bring the rule, the farmers' market contract, the grower's agreement, and the federal regulations into accordance with one another.

Statutory Authority for Adoption: RCW 43.70.120.

Statute Being Implemented: 7 C.F.R. 248.

Summary: The sanctions section is being revised to comply with regulatory reform and the language is changed throughout to provide more clarity and consistency with the farmers' market contract, the grower's agreement, and the federal regulations. In addition, sections are rearranged for better flow and understanding.

Reasons Supporting Proposal: The existing rule had not been reviewed since the regulatory reform legislation was enacted. In addition, there had been requests to bring all program documents into accord with one another. The program also took the opportunity to streamline some procedures and clean up and simplify language.

Name of Agency Personnel Responsible for Drafting: Sheryl Pickering/Susan Evans, P.O. Box 47886, Olympia, 98504-7886, (360) 236-3655; Implementation and Enforcement: Sheryl Pickering/Mari Hovelson, P.O. Box 47886, Olympia, 98504-7886, (360) 236-3655.

Name of Proponent: Department of Health WIC Program, governmental.

Rule is necessary because of federal law, 7 C.F.R. 248.

Explanation of Rule, its Purpose, and Anticipated Effects: The rule explains the responsibilities of farmers' markets and growers participating in the farmers' market nutrition program, sanctions for noncompliance, and rights of appeal. The purpose of the rule is to clarify the federal regulations and bring the rule, the farmers' market contract, and the grower's agreement into accordance with one another and with the federal regulations. By doing so and by simplifying language and rearranging text for better flow, the program anticipates making compliance for our participating farmers' markets and growers as easy as possible.

Proposal Changes the Following Existing Rules: The proposed rule changes language and flow of the business. It does not change the way farmers' markets and growers participate in the farmers' market nutrition program. No additional work, time, or money will be required of participating farmers' markets and growers upon establishment of this rule.

No small business economic impact statement has been prepared under chapter 19.85 RCW. The proposed rule does not change the requirements of participation in the farmers' market nutrition program. They restate the existing requirements in an easier-to-understand language and format. The department expects the proposed changes will lower the costs of compliance for contracted farmers' markets and growers.

RCW 34.05.328 applies to this rule adoption. The rule contains requirements stipulated in the federal regulations which subject a farmers' market or grower to a sanction if violated. The Administrative Procedure Act requires a rule be in place when violation of program requirements subjects the violator to monetary sanctions. One of the types of sanctions listed in the federal regulations is monetary.

Hearing Location: Department of Health, New Market Campus, 7171 Cleanwater Lane, Building 1, Tumwater, 98504-7880, on February 25, 2000, at 9:00 a.m.

Assistance for Persons with Disabilities: Contact Susan Evans by February 18, 2000, TDD (800) 833-6388.

Submit Written Comments to: Susan Evans, WIC Program, P.O. Box 47886, Olympia, WA 98504-7886, fax (360) 586-3890, by February 25, 2000.

Date of Intended Adoption: February 29, 2000.

January 18, 2000

M. C. Selecky

Secretary

OTS-3166.3


AMENDATORY SECTION(Amending WSR 96-01-085, filed 12/18/95, effective 1/18/96)

WAC 246-780-001
((Description of)) What is the WIC farmers' market nutrition program((.))?

(1) The purpose of the WIC farmers' market nutrition program is to:

(a) Provide locally grown, fresh, nutritious, unprepared fruits and vegetables to ((nutritionally at-risk low-income)) women((, infants over six months of age,)) and children, who participate in the special supplemental nutrition program for women, infants, and children (WIC); and

(b) Expand the awareness and use of ((and sales at)) farmers' markets where consumers can buy directly from the grower.

(2) ((Funding is provided by the Washington state department of health and the Washington state department of agriculture who contribute funds meeting the match required to receive federal funding.

(3))) The WIC farmers' market nutrition program is administered by the Washington state departments of health and agriculture.

[Statutory Authority: RCW 43.70.120. 96-01-085, 246-780-001, filed 12/18/95, effective 1/18/96.]


AMENDATORY SECTION(Amending WSR 96-01-085, filed 12/18/95, effective 1/18/96)

WAC 246-780-010
Definitions.

(1) "Authorized" or "authorization" means an eligible grower and/or farmers' market has met the selection criteria and signed an agreement/contract with the department allowing participation in the WIC farmers' market nutrition program.

(2) "Broker((s))" ((shall)) or "wholesale distributor" means ((those)) an individual((s)) or business((es)) who exclusively sells produce grown by others. There is an exception for an individual employed by a grower who is qualified to participate in the WIC farmers' market nutrition program or is employed by a nonprofit organization to sell produce on behalf of qualified growers.

(((2))) (3) "Contract" or "agreement" means a written legal document binding the contractor and the department to designated terms and conditions.

(4) "Contractor" ((shall)) means a farmers' market who has a signed contract with the department to participate in the WIC farmers' market nutrition program.

(((3))) (5) "Cut herbs" means fresh herbs with no medicinal value that are not potted or bagged.

(6) "Department" ((shall)) means the Washington state departments of health and agriculture ((and health)).

(((4) "FMNP" shall mean the farmers' market nutrition program.

(5))) (7) "Disqualification" ((shall)) means the act of ((ending)) terminating the ((participation)) agreement and/or contract of an authorized ((food)) grower and/or farmers' market from the WIC farmers' market nutrition program for noncompliance with program requirements.

(((6) "Locally grown" shall mean Washington grown or grown in an adjacent county in a border state.

(7))) (8) "Eligible foods" ((shall)) means locally grown, unprocessed (except for washing), fresh, nutritious fruits ((and)), vegetables, and cut herbs.

(((8) "Farmers' market" shall mean an association of five or more local growers who assemble for the purpose of selling their produce directly to consumers.))

(9) "Eligible grower" ((shall)) means ((any)) an individual or business who grows a portion of the produce that they sell ((and exchange for farmers' market nutrition program checks)) at Washington state authorized farmers' markets.

(10) "Farmers' market" means a membership of five or more growers who assemble at a defined location for the purpose of selling their produce directly to consumers.

(11) "FMNP" or "program" means the WIC farmers' market nutrition program.

(12) "Locally grown" means Washington grown or grown in an adjacent county of Idaho or Oregon.

(13) "Local WIC agency" means the contracted agency or clinic where a client receives WIC services and WIC farmers' market checks.

(14) "Program coordinator" means an individual designated by the farmers' market manager (or market board members) responsible for overseeing the market's participation in the WIC farmers' market nutrition program.

(15) "Trafficking" ((shall)) means the ((prohibited)) buying or exchanging of WIC farmers' market ((nutrition program)) checks for cash, drugs, ((and/))or alcohol.

(((11))) (16) "Validating" means stamping the WIC farmers' market check in the designated box with appropriate market and grower identification numbers using the stamper provided by the department.

(17) "WIC" ((shall)) or "WIC program" means the federally funded special supplemental nutrition program for women, infants, and children administered in Washington state by the department of health.

(((12) "FMNP abuse" shall include but not be limited to:

(a) Providing cash, unauthorized food, nonfood items, drugs, alcohol or other items to WIC customers in lieu of or in addition to authorized FMNP foods;

(b) Charging the FMNP or WIC/FMNP customer for foods not received by the customer;

(c) Charging the FMNP more for authorized foods than other customers are charged for the same food item;

(d) Providing rain checks or credit to customers in a FMNP transaction;

(e) Charging WIC customers cash or giving change to customers in a FMNP transaction;

(f) Validating and/or redeeming FMNP checks without having authorization from the department;

(g) Collecting a sales tax on FMNP purchases;

(h) Seeking restitution from FMNP WIC program clients for checks not paid by the department;

(i) Accepting and/or validating checks outside of the program dates.)) (18) "WIC client" or "client" means a pregnant, breast feeding, or postpartum woman, infant, or child receiving WIC benefits.

[Statutory Authority: RCW 43.70.120. 96-01-085, 246-780-010, filed 12/18/95, effective 1/18/96.]


AMENDATORY SECTION(Amending WSR 96-01-085, filed 12/18/95, effective 1/18/96)

WAC 246-780-020
((Contractor responsibilities.)) How does a farmers' market become a contractor?

(1) ((The department shall authorize contractors who may validate and authorize growers to accept FMNP checks. Unauthorized contractors who validate FMNP checks are subject to the penalties specified in WAC 246-780-040, Sanctions.

(2) Contractors shall submit an application to the department.

(3) The contractor shall:

(a) Allow only growers selling locally grown produce to accept FMNP checks.

(b) Agree to designate a program coordinator to validate and/or mark checks with a market/grower identifier.

(c) Agree to provide the department any information it has available which the department deems necessary to track the impact of the FMNP on the farmers' market or on WIC/FMNP clients participating in the FMNP.

(d) Accept training on FMNP procedures, assist the department in training participating growers, and safeguard client information.

(e) Provide such information as the department may require for annual reports to the United States Department of Agriculture, Food and Consumer Services.

(f) Ensure that checks are redeemed only by eligible growers.

(g) Sell eligible foods to FMNP clients at the same price as charged to other customers.

(h) Agree to allow the department to monitor the farmers' market for compliance with FMNP procedures.

(i) Act as a liaison to obtain signed grower agreements from growers who have agreed to sell at the farmers' market before they accept FMNP checks.

(j) Ensure that FMNP clients receive the same courtesies as other customers.

(k) Notify the department immediately if and when market operations cease.

(l) Refuse to validate any FMNP checks from ineligible growers.

(4) The contractor shall not allow growers to:

(a) Collect sales tax on FMNP check purchases.

(b) Seek payment from FMNP clients for checks not paid by the department.

(c) Give cash back for purchases that are in an amount less than the value of the checks.

(5) Neither the department nor the contractor have an obligation to renew a contract.)) A farmers' market wanting to participate in the WIC farmers' market nutrition program must apply for authorization, meet the selection criteria, and sign a contract with the department.

(2) Selection is based on the following:

(a) The local WIC agency in the farmers' market service area must participate in the WIC farmers' market nutrition program.

(b) The farmers' market must have a designated market manager on-site during operating hours.

(c) The farmers' market must have been in operation a minimum of one year. If there is a market currently participating in the program in an area where a new market has applied to participate, the one-year requirement may be waived.

(d) The farmers' market must keep a current list of eligible growers, including the farmer's name, business address, telephone number, and crops to be sold July through October. The farmers' market must agree to provide this list to the state WIC office on request.

(e) The farmers' market must be located within twenty miles of the local WIC agency.

(f) A minimum of five eligible growers must participate in the farmers' market each year.

(g) The farmers' market must agree to comply with training sessions and monitor visits.

(h) The farmers' market must agree to comply with all terms and conditions specified in the contract.

(3) The WIC farmers' market nutrition program is not required to authorize all applicants.

[Statutory Authority: RCW 43.70.120. 96-01-085, 246-780-020, filed 12/18/95, effective 1/18/96.]


NEW SECTION
WAC 246-780-022
What is expected of a contractor?

(1) The contractor shall:

(a) Comply with the WIC farmers' market nutrition program requirements and the terms and conditions of the farmers' market contract;

(b) Accept training on WIC farmers' market nutrition program requirements from department staff;

(c) Provide training to market employees and eligible growers in person on WIC farmers' market nutrition program requirements;

(d) Be accountable for the actions of market employees involved in the WIC farmers' market nutrition program;

(e) Obtain signed grower agreements from eligible growers before they accept WIC farmers' market checks;

(f) Ensure that WIC farmers' market checks are redeemed only by eligible growers;

(g) Allow only growers selling locally grown produce to accept WIC farmers' market checks;

(h) Ensure that WIC farmers' market checks are redeemed only for eligible foods;

(i) Ensure eligible growers redeem WIC farmers' market checks within valid dates;

(j) Ensure eligible growers have and display the "WIC Farmers' Market Checks Welcome Here" sign each market day when at authorized markets;

(k) Refuse to validate any WIC farmers' market checks from ineligible growers;

(l) Agree to designate a program coordinator to validate WIC farmers' market checks with the appropriate market and grower identification numbers;

(m) Comply with federal and state nondiscrimination laws;

(n) Ensure that WIC farmers' market nutrition program clients receive the same courtesies as other customers;

(o) Agree to provide the department with any information it has available regarding its participation in the WIC farmers' market nutrition program;

(p) Agree to keep WIC farmers' market client information confidential;

(q) Agree to allow the department to monitor the farmers' market for compliance with program requirements;

(r) Notify the department immediately if and when market operations cease; and

(s) Report any suspected noncompliance with WIC farmers' market nutrition program requirements to the department.

(2) Neither the department nor the contractor have an obligation to renew a contract.

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NEW SECTION
WAC 246-780-025
How does an eligible grower become authorized by a farmers' market to accept WIC farmers' market checks?

Eligible growers must:

(1) Grow a portion of the produce they have for sale. Any individual who purchases all the produce they plan to resell is considered a broker and is not allowed to participate in the program;

(2) Sell at an authorized farmers' market;

(3) Agree to follow the terms and conditions of the grower agreement; and

(4) Sign the grower agreement and return it to the department for signature and to be assigned a grower identification number.

[]


NEW SECTION
WAC 246-780-028
What is expected of an authorized grower?

The authorized grower agrees to:

(1) Comply with the WIC farmers' market nutrition program requirements and the terms and conditions of the grower agreement;

(2) Accept training on WIC farmers' market nutrition program requirements and assure that all persons working in the authorized grower's stall are trained as well;

(3) Be held accountable for the actions of all persons working in the authorized grower's stall regarding WIC farmers' market nutrition program purchases;

(4) Accept WIC farmers' market checks only for eligible foods;

(5) Accept WIC farmers' market checks only at authorized farmers' markets;

(6) Accept WIC farmers' market checks within the valid dates of the program;

(7) Redeem WIC farmers' market checks by the date imprinted on the check;

(8) Display the "WIC Farmers' Market Checks Welcome Here" sign each market day when at authorized markets;

(9) Provide the WIC farmers' market nutrition program clients with the full amount of product for the value of each WIC farmers' market check;

(10) Charge WIC farmers' market nutrition program clients the same prices as other customers;

(11) Have the WIC farmers' market checks validated by the program coordinator at the farmers' market where the checks were accepted before cashing or depositing them;

(12) Make produce available that is the same quality as that offered to other customers;

(13) Comply with federal and state nondiscrimination laws;

(14) Treat WIC farmers' market customers as courteously as other customers;

(15) Cooperate with department staff in monitoring for compliance with program requirements and provide information on request;

(16) Reimburse the department for WIC farmers' market checks taken improperly;

(17) Not collect sales tax on WIC farmers' market check purchases;

(18) Not seek payment from WIC farmers' market nutrition program clients for checks not paid by the department;

(19) Not give cash back for purchases less than the value of the checks; and

(20) Not use WIC farmers' market checks to purchase foods from other growers or pay for market fees or other business costs.

[]


AMENDATORY SECTION(Amending WSR 96-01-085, filed 12/18/95, effective 1/18/96)

WAC 246-780-030
((Authorized foods.)) What kind of foods can clients buy with WIC farmers' market checks?

(1) ((The contractor and growers shall ensure that only unprocessed,)) Locally grown, unprocessed (except for washing), fresh fruits ((and)), vegetables ((are sold to WIC/FMNP clients participating in the FMNP)), and cut herbs can be purchased with WIC farmers' market checks.

(2) Ineligible items ((are those items as defined by the department. The ineligible items)) include, but are not limited to, baked goods, cheeses, cider, crafts, dairy products, dried fruits, dried herbs, dried vegetables, eggs, flowers, fruit juices, honey, ((jam/)) jams, jellies, ((cider)) meats, nuts, ((flowers and baked goods. The list of eligible items shall be provided to growers and contractors upon request)) potted herbs, seafood, seeds, and syrups.

[Statutory Authority: RCW 43.70.120. 96-01-085, 246-780-030, filed 12/18/95, effective 1/18/96.]


AMENDATORY SECTION(Amending WSR 96-01-085, filed 12/18/95, effective 1/18/96)

WAC 246-780-040
((Sanctions.)) What happens if a farmers' market or a grower does not comply with WIC farmers' market nutrition program requirements?

(1) ((The department may disqualify a grower and/or contractor for reasons of FMNP abuse for one year from the date of offense. At the end of the disqualification period, the grower and/or contractor shall be required to reapply to be considered for authorization.

(2) Growers and contractors may be subject to sanctions in addition to, or in lieu of, disqualification. Prior to disqualifying a grower or contractor, the department shall consider whether the disqualification would create undue hardships for WIC participants.

(3) The department may set the period of disqualification from program participation. In no instance shall this period of disqualification exceed one year.

(4) The department shall recover funds due the FMNP and may impose a fine on growers and/or contractors for the offenses in this subsection. The department shall deposit these funds into the FMNP account in accordance with federal regulations.

Money shall be paid to the department within the time period specified in the notice of adverse action, or the grower and/or contractor may be suspended from the FMNP for a period of at least one program year, or the remainder of the calendar year. Offenses include but are not limited to:

(a) Providing cash, unauthorized food, nonfood items, drugs, alcohol or other items to WIC customers in lieu of or in addition to authorized FMNP foods;

(b) Charging the FMNP or WIC/FMNP customer for foods not received by the customer;

(c) Charging the FMNP more for authorized foods than other customers are charged for the same food item;

(d))) Farmers' markets and growers who do not comply with WIC farmers' market nutrition program requirements are subject to sanctions, such as monetary penalties, in addition to, or in lieu of, disqualification. Prior to disqualifying a farmers' market or grower, the department shall consider whether the disqualification would create undue hardships for WIC farmers' market nutrition program clients.

(2) Noncompliance includes, but is not limited to:

(a) Failing to display the "WIC Farmers' Market Checks Welcome Here" sign each market day when at authorized markets;

(b) Providing unauthorized food, nonfood items, or other items to WIC farmers' market nutrition program clients in lieu of, or in addition to, eligible foods;

(c) Charging the program for foods not received by the client;

(d) Providing rain checks or credit to ((customers)) clients in a ((FMNP)) WIC farmers' market nutrition program transaction;

(e) ((Charging WIC customers cash or giving change to customers in a FMNP transaction;)) Giving change to WIC farmers' market nutrition program clients if the purchase is less than the value of the WIC farmers' market check;

(f) Validating ((and/or redeeming FMNP)) WIC farmers' market checks without having authorization from the department;

(g) Accepting WIC farmers' market checks without having a signed agreement with the department;

(h) Accepting WIC farmers' market checks at unauthorized farmers' markets;

(i) Failing to get the WIC farmers' market checks validated with the market and grower identification numbers by the farmers' market program coordinator where the checks were accepted;

(j) Collecting ((a)) sales tax on ((FMNP)) WIC farmers' market purchases;

(((h))) (k) Seeking restitution from ((FMNP WIC)) program clients for checks not paid by the department;

(((i))) (l) Accepting and/or validating checks outside of the program dates; and

(((j) Violation of)) (m) Violating the rules of this chapter or the provisions of the contract and/or agreement.

(((5) Any instances of trafficking in FMNP checks (in any amount) shall result in disqualification as an authorized contractor or grower for the FMNP.

(6) A contractor who commits fraud or abuse of the FMNP is liable for prosecution under Part 7 CFR 246.12 (f)(2)(xiv).)) (3) Farmers' markets and growers found in noncompliance will be notified by the department and given the opportunity to correct the problem.

(4) If a farmers' market or grower is subsequently found in noncompliance for the same or a similar reason, the department may impose sanctions, such as monetary penalties or disqualification, without giving the opportunity to correct the problem.

(5) When the department notifies a farmers' market or grower of anything that affects their participation in the program, the department shall give written notice not less than fifteen days before the effective date of the action. The notice shall state what action is being taken, the effective date of the action, and the procedure for requesting an appeal hearing.

(6) The department may deny payment to a grower for mishandling WIC farmers' market checks.

(7) The department may seek reimbursement from a grower for payments made on improperly handled WIC farmers' market checks.

(8) Monetary penalties shall be paid to the department within the time period specified in the notice. The department shall refer farmers' markets and/or growers who fail to pay within the specified time period to a commercial collection agency. In addition, the department may disqualify a farmers' market or grower.

(9) A farmers' market or grower that has been disqualified from the WIC farmers' market nutrition program must reapply at the end of the disqualification period to be considered for authorization.

(10) Any trafficking in WIC farmers' market checks (exchanging checks for cash, drugs, or alcohol) in any amount shall result in disqualification.

(11) Farmers' markets and growers who commit fraud or other unlawful activities are liable for prosecution according to program regulations. (7 C.F.R. 248.10(k).)

[Statutory Authority: RCW 43.70.120. 96-01-085, 246-780-040, filed 12/18/95, effective 1/18/96.]


AMENDATORY SECTION(Amending WSR 96-01-085, filed 12/18/95, effective 1/18/96)

WAC 246-780-060
((Dispute appeals.)) How does a farmers' market or grower appeal a department decision?

((Contractors)) (1) Farmers' markets and growers have a right to appeal ((an action by the department denying the)) denial of payment, denial of an application, ((imposing a sanction or disqualifying it)) monetary penalty or disqualification from the ((FMNP)) WIC farmers' market nutrition program. Expiration or nonrenewal of a contract or agreement is not subject to appeal.

(((1) A contractor or grower whose application is denied to participate or to continue to participate in the FMNP has the right to an appeal pursuant to the procedures set out in chapter 246-10 WAC. At the appeal, the contractor or grower may discuss the reasons for the denial.))

(2) If the action being appealed is a disqualification of a farmers' market, the farmers' market shall cease validating WIC farmers' market checks for all growers participating in the market effective the date specified in the sanction notice.

(3) If the action being appealed is a disqualification of a grower, the grower shall cease accepting WIC farmers' market checks effective the date specified in the sanction notice. In addition, the farmers' market shall cease validating checks for the affected grower. Payments shall not be made for any WIC farmers' market checks submitted by a grower for payment during a period of disqualification.

(4) The department may, at its discretion, permit the farmers' market or grower to continue participating in the program pending the appeal hearing outcome.

(5) A request for an appeal hearing shall be in writing and shall:

(a) State the issue raised;

(b) ((State the grounds for contesting the aggrieving department action)) Contain a summary of the farmers' market's or grower's position on the issue, indicating whether each charge is admitted, denied, or not contested;

(c) State the ((law, facts and conditions on which the appeal relies)) name and address of the farmers' market or grower requesting an appeal hearing;

(d) ((Contain the appellant's current address and telephone number, if any; and)) State the name and address of the ((appellant's)) attorney ((or other representative)) representing the farmers' market or grower, if any;

(e) State the farmers' market or grower's need for an interpreter or other special accommodations, if necessary; and

(f) Have a copy of the ((adverse department)) notice from the department attached.

(((3))) (6) A request for an appeal shall be ((made by personal service or by regular mail to)) filed at the Department of Health, ((Office of Professional Standards, 2413 Pacific Avenue)) Adjudicative Clerk's Office, 1107 Eastside, P.O. Box ((47872)) 47879, Olympia, WA 98504-((7872))7879. The request shall be made within twenty-eight days of the date the ((contractor/)) farmers' market or grower received the department notice ((of adverse action)).

(((4) The dispute appeals process is the sole administrative remedy the department offers a contractor or grower.)) (7) The decision concerning the appeal shall be made within sixty days from the date the request for an appeal hearing was received by the adjudicative clerk's office. The time shall be extended by as many days as all parties agree to with good cause.

[Statutory Authority: RCW 43.70.120. 96-01-085, 246-780-060, filed 12/18/95, effective 1/18/96.]


REPEALER

     The following sections of the Washington Administrative Code are repealed:
WAC 246-780-050 Notice of adverse action to a FMNP contractor and/or grower.
WAC 246-780-070 Contractor/grower-continued participation pending dispute resolution.

Washington State Code Reviser's Office