BEFORE THE DEPARTMENT OF PUBLIC
HEALTH AND HUMAN SERVICES OF THE
STATE OF MONTANA
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In the matter of the amendment of ARM 37.59.101, 37.59.102, 37.59.105, 37.59.109, 37.59.110, 37.59.201, 37.59.202, 37.59.203, 37.59.301, 37.59.302, 37.59.303, 37.59.401, and 37.59.402 pertaining to the update of the special supplemental nutrition program for women, infants, and children (WIC) |
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NOTICE OF PUBLIC HEARING ON PROPOSED AMENDMENT
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TO: All Concerned Persons
1. On September 17, 2013, at 10:00 a.m., the Department of Public Health and Human Services will hold a public hearing in the auditorium of the Department of Public Health and Human Services Building, 111 North Sanders, Helena, Montana, to consider the proposed amendment of the above-stated rules.
2. The Department of Public Health and Human Services will make reasonable accommodations for persons with disabilities who wish to participate in this rulemaking process or need an alternative accessible format of this notice. If you require an accommodation, contact Department of Public Health and Human Services no later than 5:00 p.m. on September 9, 2013, to advise us of the nature of the accommodation that you need. Please contact Kenneth Mordan, Department of Public Health and Human Services, Office of Legal Affairs, P.O. Box 4210, Helena, Montana, 59604-4210; telephone (406) 444-4094; fax (406) 444-9744; or e-mail [email protected].
3. The rules as proposed to be amended provide as follows, new matter underlined, deleted matter interlined:
37.59.101 PURPOSE OF RULES (1) The purpose of the rules in subchapters 1 and 2 of this chapter is to provide a clear procedural framework under which the department administers the federal sSpecial sSupplemental food Nutrition pProgram for wWomen, iInfants, and cChildren, the so-called "WIC" program (WIC Program), which is sponsored by the fFood and nNutrition sService (FNS) of the United States dDepartment of aAgriculture (USDA) and which has been administered in Montana by the department of public health and human services since approximately 1974.
AUTH: 50-1-202, MCA
IMP: 50-1-202, MCA
37.59.102 DEFINITIONS Unless otherwise indicated, the following definitions apply throughout this chapter:
(1) "Administrative and program services costs" means those direct and indirect costs, exclusive of food costs, as defined in 7 CFR 246.14(c), which the department determines to be necessary to support local agency program operations. Administrative and program services costs include,: but are not limited to, the costs of program administration, start-up, monitoring, auditing, the development of and accountability for food delivery systems, nutrition and breastfeeding education, outreach, certification, information technology, and developing and printing food instruments benefits.
(2) remains the same.
(3) "Breastfeeding women" means women up to 1 one year postpartum who are breastfeeding their infants.
(4) "Caseload" means the number of persons certified by the local agencies, eligible and participating in the WIC pProgram at any point in time. Persons certified eligible but wait-listed are not considered to be participating in the WIC pProgram, and therefore are not included when the department assigns caseload limits or tallying caseload being carried at a point in time.
(5) "Categorical eligibility" means persons who meet the definitions of pregnant women, breastfeeding women, postpartum women, or infants, or children.
(6) remains the same.
(7) "Children" means persons who have had their 1st first birthday but have not yet attained their 5th fifth birthday.
(8) "Client" means a WIC program participant.
(9) remains the same but is renumbered (8).
(10) (9) "Competent professional authority (CPA)" means an individual on the staff of the local agency authorized to determine nutritional risk and prescribe supplemental foods. The following persons are the only persons the department may authorize to serve as a competent professional authority CPA: physicians, nutritionists (bachelor's or master's degree in nutritional sciences, community nutrition, clinical nutrition, dietetics, public health nutrition, or home economics with emphasis in nutrition), dietitians, registered nurses, physician's assistants (certified by the national committee on certification of physician's assistants, or certified by the state medical certifying authority), or state or local medically trained health officials. This definition also applies to an individual who is not on the staff of the local agency but who is qualified to provide data upon which nutritional risk determinations are made by a competent professional authority CPA on the staff of the local agency.
(11) remains the same but is renumbered (10).
(12) (11) "Disqualification" means the act of ending the program participation of a participant, authorized food vendor retailer, authorized farmer, or local agency, whether as a punitive sanction or for administrative reasons.
(13) remains the same but is renumbered (12).
(13) "Dyad" means a breastfeeding woman and the infant to whom she is providing breast milk who are participating on WIC.
(14) remains the same.
(15) "Family" means a group of related or non-related individuals who are not residents of an institution but who are living together as one economic unit and whose production of income and consumption of goods and services are shared. Residents of a homeless facility or an institution will not be considered as members of a single family. Students who are temporarily away at school may be counted as members of the family.
(16) "Farmer" means an individual authorized by the state agency to sell eligible fruits and vegetables to participants at a farmers' market or roadside stand. Individuals who exclusively sell produce grown by someone else, such as wholesale distributors, cannot be authorized.
(16) and (17) remain the same but are renumbered (17) and (18).
(18) (19) "Food instrument benefit" means a voucher, check, coupon, or other document electronic benefit transfer which is used by a participant to obtain supplemental foods.
(19) (20) "Food package" means supplemental foods prescribed by a competent professional authority CPA for a WIC participant to meet demonstrated nutritional needs.
(20) "Food vendor" means a local grocer, dairy, or other merchant who, through a signed agreement with the local agency, provides WIC foods in exchange for the WIC voucher.
(21) remains the same.
(22) "Infants" means persons under 1 one year of age.
(23) "Initial visit" means the first time a person visits a WIC clinic to request program benefits, whether by an in-person inquiry or by a visit for an appointment previously established by telephone.
(24) "Local agency" means:
(a) and (b) remain the same.
(c) an Indian tribe, band, or group recognized by the United States dDepartment of the iInterior which operates a health clinic or is provided health services by an Indian health service unit; or
(d) an intertribal council or group that is an authorized representative of Indian tribes, bands, or groups recognized by the United States dDepartment of the iInterior, which operates a health clinic or is provided health services by an Indian health service unit.
(25) and (26) remain the same.
(27) "Monthly participation" means a total number of clients participants actually receiving benefits in any month, and the breastfeeding dyad member who does not receive food benefits while the other member does.
(28) remains the same.
(29) "Nutrition counseling" means individualized professional guidance to assist a person in adjusting his/her their daily food consumption to meet his/her their health needs.
(30) remains the same.
(31) "Nutrition services" means nutrition intervention planned for and provided to a client participant, such as assessment of nutritional health status, counseling, provision of nutrition information, prescription of a food package, referral to other health, financial, or social services, and evaluation of change in behavior and nutritional health status.
(32) "Nutritional risk" means:
(a) and (b) remain the same.
(c) dietary deficiencies that impair or endanger health; or
(d) conditions that directly affect the nutritional health of a person; or
(d) remains the same but is renumbered (e).
(33) remains the same.
(34) "Participants" means pregnant women, breastfeeding women, postpartum women, infants, and children who are receiving supplemental foods or food instruments benefits under the program, and the breastfeeding dyad member who does not receive food benefits while the other member does.
(35) "Participation" means the number of persons who have received supplemental foods or food instruments benefits during a reporting period, and the breastfeeding dyad member who does not receive food benefits while the other member does.
(36) "Postpartum women" means women up to 6 six months after termination of pregnancy.
(37) remains the same.
(38) "Poverty income guidelines" means the poverty income guidelines prescribed by the United States dDepartment of hHealth and hHuman sServices (DHHS). These guidelines are adjusted annually by the department of health and human services DHHS, with each annual adjustment effective July 1 of each year. The poverty income guidelines prescribed by the department of health and human services DHHS are used for the Montana WIC pProgram.
(39) "Pregnant women" means women determined to who have one or more embryos or fetuses in utero.
(40) remains the same.
(41) "Program" means the sSpecial sSupplemental food Nutrition pProgram for wWomen, iInfants and cChildren (WIC), authorized by section 17 of the Child Nutrition Act of 1966, as amended.
(42) "Reallocation" means the process by which the United States Department of Agriculture (USDA) monies are moved from one state agency which is spending at a lower rate and given to another state agency that is able to spend the money more rapidly due to larger caseloads and a similar process used by the department among local agencies.
(43) "Registered dietitian (RD)" means a professional who meets the academic and experience requirements described in 37-21-302 37-25-302, MCA.
(44) "Retail purchase system" means a system in which the participant obtains WIC foods through an authorized food vendor retailer or farmer, i.e., grocer or dairy.
(45) "Retailer" means an entity that, through a signed agreement with the state agency, provides WIC foods in exchange for WIC benefits. Each individual retailer must be contracted separately.
(45) (46) "Satellite" means a WIC program clinic operated by another the WIC program agency which has primary administrative responsibility for a program and contracts directly with the department. A satellite differs from a site in that it is located outside the defined project area, i.e., county or reservation.
(46) remains the same but is renumbered (47).
(47) (48) "Staffing pattern" means the recommended ratio of WIC staff needed to the number of participants served.
(48) (49) "State plan" means the "1990 2014 State Plan for Montana's Special Supplemental Food Nutrition Program for Women, Infants and Children (WIC)" (October 1989 edition), a plan of program operation and administration that describes the manner in which the department intends to implement and operate all aspects of program administration within its jurisdiction in accordance with 7 CFR 246.4.
(49) (50) "Supplemental foods" means those foods containing nutrients determined to be beneficial for by nutritional research to be lacking in the diets of pregnant, breastfeeding, and postpartum women, infants, and children, and foods that promote the health of the population served by the WIC Program as indicated by relevant nutrition science, public health concerns, and cultural eating patterns as prescribed by the United States Secretary of Agriculture in 7 CFR 246.10.
(50) "Voucher" means a check-like document which is traded by WIC participants for food at their local food vendors.
(51) "Waiting list" means a list of applicants waiting to be accepted in the WIC pProgram when vacancies occur.
(52) The department hereby incorporates herein by reference the following:
(a) 7 CFR 246.4, which is a federal agency WIC regulation concerning state agency program operations and administration;
(b) 7 CFR 246.5, which is a federal agency WIC regulation concerning selection of local agencies;
(c) 7 CFR 246.10, which is a federal agency WIC regulation concerning the supplemental foods prescribed for eligible persons;
(d) 7 CFR 246.14(b) and (c), which is a federal agency WIC regulation concerning the allowable administrative and program services costs;
(e) 7 CFR Part 3015, which is a federal agency regulation containing the USDA's uniform federal assistance regulations. Part 3015 implements the policies established by the office of management and budget (OMB) in circulars A-21, A-87, A-102, A-110, A-122, and A-128, as well as OMB Guidance on Implementation of the Federal Grant and Cooperative Agreement Act of 1977;
(f) the poverty income guidelines contained in volume 54 of the Federal Register, issue 89 (May 10, 1989);
(g) section 17 of the Child Nutrition Act of 1966, 42 U.S.C. 1771, et seq., as amended; and
(h) the "1990 State Plan for Montana's Special Supplemental Food Program for Women, Infants and Children (WIC)" (October 1989 edition), which is a comprehensive summary of applicable federal regulations, procedures, and forms used by the department.
(i) Copies of the above materials may be obtained from the Department of Public Health and Human Services, Special Supplemental Nutrition Program for Women, Infants & Children (WIC), P.O. Box 202951, Helena, MT 59620-2951.
AUTH: 50-1-202, MCA
IMP: 50-1-202, MCA
37.59.105 INCORPORATIONS BY REFERENCE (1) This chapter of ARM Title 37 establishes a state WIC pProgram which is essentially the equivalent of the federal WIC pProgram.
(2) In view of the requirements of equivalence with the federal program and in order to simplify the rulemaking process and make the rules less cumbersome, the department has relied heavily upon incorporation and adoption by reference of federal requirements as set forth in Title 7 of the Code of Federal Regulations (CFR).
(3) (2) Where the department has adopted a federal regulation by reference, the following shall apply applies:
(a) References in the federal regulations to "Administrator" or "Regional Administrator,", or the like, should be read to mean "department.".
(b) remains the same.
(4) All of the incorporations by reference of federal agency rules are listed below by state rule number, together with the CFR edition date. This rule supersedes any specific references to editions of the CFR contained in other rules in this chapter.
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State Rule
37.59.
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Federal rule Incorporated
7 CFR
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CFR Edition Date
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102
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246.4, 246.5, 246.10, 246.14(b) & (c); and Part 3015
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January 1, 1989
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109
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Parts 15, subparts A & B; Part 246; and Part 3015
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January 1, 1989
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201
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246.5(a) through (e)
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January 1, 1989
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202
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246.6
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January 1, 1989
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203
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246.5(d)(1) and 246.18
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January 1, 1989
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301
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246.12(e) through (o)
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January 1, 1989
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302
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246.12(f)
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January 1, 1989
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303
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246.18
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January 1, 1989
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401
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246.9
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January 1, 1989
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402
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246.18
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January 1, 1989
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(3) The department adopts and incorporates by reference the following:
(a) the poverty income guidelines as published under the "Annual Update on the HHS Poverty Guidelines" 78 Federal Register 16, pp 5182-5183, January 24, 2013;
(b) section 17 of the Child Nutrition Act of 1966, 42 U.S.C. 1771, et seq., as amended and reauthorized in 2010; and
(c) the "2014 State Plan for Montana's Special Supplemental Nutrition Program for Women, Infants and Children (WIC)" which is a comprehensive summary of applicable federal regulations, procedures, and forms used by the department.
(5) remains the same but is renumbered (4).
AUTH: 50-1-202, MCA
IMP: 50-1-202, MCA
37.59.109 PROGRAM ADMINISTRATION AND GUIDANCE (1) As the state agency to which the United States Department of Agriculture (USDA) has delegated the administration of the WIC pProgram, the department is responsible for the effective and efficient administration of the program in accordance with the USDA program regulations set forth in 7 CFR Part 246, USDA's regulations governing the WIC pProgram; 7CFR Part 15, subparts A and B C, USDA's regulations governing nondiscrimination; and 7 CFR Part 3015, USDA's regulations governing the administration of grants.
(2) In addition to the documents referred to in (1) above, the department, as the state agency to which the USDA has delegated administration of the WIC pProgram, also receives numerous policies, forms, guidelines, and instructions from the USDA fFood and nNutrition sService (FNS) issued under the FNS directives management system. The department has assembled such policies, forms, guidelines, and instructions, (and the state forms and guidelines required by such directives), into three department documents: the state plan which is distributed to each participating local agency and is to be followed by each local agency in administering the program.
(a) the "1990 State Plan for Montana's Special Supplemental Food Program for Women, Infants and Children (WIC)" (October 1989 edition), which is a comprehensive summary of applicable federal regulations (all of which are elsewhere incorporated in this chapter), procedures, and forms used by the department, and which is distributed to each participating local agency and is to be followed by each local agency in administering the program; and
(b) "Guidelines on Management and Operations of the WIC program in Montana" (January 1988 edition), a series of instructions, guidelines, and interpretations developed by the USDA and periodically received by the department, to which the department refers in resolving management issues under the WIC program, including but not limited to financial management issues.
(3) The department hereby adopts and incorporates herein by reference the following:
(a) 7 CFR Part 246, which are USDA regulations governing the WIC pProgram, edition date January 1, 2013 and may be obtained at www.fns.usda.gov/wic/lawsandregulations/wicregulations-7cfr246.pdf;
(b) 7 CFR Part 15, subparts A and B C, which are USDA regulations governing nondiscrimination, edition date January 1, 2013 and may be obtained at www.law.cornell.edu/cfr/text/7/part-15/subpart-A and www.law.cornell.edu/cfr/text/7/part-15/subpart-C;
(c) 7 CFR Part 3015, which are USDA regulations governing the administration of grants, edition date January 1, 2013 and may be obtained at www.law.cornell.edu/cfr/text/7/3015; and
(d) the "1990 2014 State Plan for Montana's Special Supplemental Food Nutrition Program for Women, Infants and Children (WIC)." (October 1989 edition), which is a department handbook setting forth procedures, practices, and forms used for the implementation of the federal WIC program in Montana.
(e) remains the same.
AUTH: 50-1-202, MCA
IMP: 50-1-202, MCA
37.59.110 NUTRITION SERVICES STANDARDS (1) Standardized nutritional risk assessment procedures as developed and defined in "Nutritional Problems, Codes, Criteria and References for Public Health Nutrition Services" (December 1986 edition) and "Weighing and Measuring Children: A Training Manual for Supervisory Personnel" must be used by all participating local WIC agencies, in a form and manner prescribed by the department as included in the "1990 State Plan for Montana's Special Supplemental Food Program for Women, Infants and Children (WIC)" (October 1989 edition), which is a comprehensive summary of applicable federal regulations (all of which are elsewhere incorporated in this subchapter), procedures, and forms used by the department. Local agency staff will provide participants with nutrition services developed and defined in the state plan, including the following:
(a) a complete nutrition assessment including hematological and anthropometric measures as indicated;
(b) CPA-identified nutrition risk code(s);
(c) CPA-assigned food package based on participant age, need, category, and preference;
(d) CPA-developed care plan to include documentation of participant goals, frequency of follow up, referrals, and plan for future education needs;
(e) breastfeeding education, promotion, and support for participants as appropriate; and
(f) at least four nutrition education contacts per annual certification or two education contacts per six-month certification, to be offered approximately every quarter.
(2) Local agencies shall arrange for standard nutrition education contacts between local agencies and participating clients, which include appropriate type and number of contacts for high risk and lower risk participants as described in the "1990 State Plan for Montana's Special Supplemental Food Program for Women, Infants and Children (WIC)" (October 1989 edition), and shall utilize nutrition education materials which have met the criteria in "E.M.P.O.W.E.R. -- Evaluate Materials to Promote Optimal Use of WIC Education Resources" (April 1985 edition).
(3) Policies and procedures for authorizing specific WIC foods based on cost, availability, nutritional value, and participant acceptance are set forth in the "1990 State Plan for Montana's Special Supplemental Food Program for Women, Infants and Children (WIC)" (October 1989 edition).
(4) The department hereby adopts and incorporates herein by reference the following documents:
(a) "Nutritional Problems, Codes, Criteria and References for Public Health Nutrition Services" (December 1986 edition), which is a document developed to provide uniform nutrition risk criteria classification in the state of Montana, for use in the Montana WIC program to record assessment of client nutrition conditions and to determine eligibility for program benefits;
(b) the "1990 State Plan for Montana's Special Supplemental Food Program for Women, Infants and Children (WIC)" (October 1989 edition);
(c) "Weighing and Measuring Children: A Training Manual for Supervisory Personnel" (November 1980 edition), which is a federal department of health and human services reference publication concerning standardized methods for weighing and measuring children; and
(d) "E.M.P.O.W.E.R. -- Evaluate Materials to Promote Optimal Use of WIC Education Resources" (April 1985 edition), which is a Massachusetts department of public health publication concerning evaluation of nutrition education materials.
(e) Copies of these documents may be obtained from the Department of Public Health and Human Services, Special Supplemental Nutrition Program for Women, Infants & Children (WIC), P.O. Box 202951, Helena, MT 59620-2951.
AUTH: 50-1-202, MCA
IMP: 50-1-202, MCA
37.59.201 SELECTION OF LOCAL AGENCIES (1) In selecting new local agencies, the department will apply the criteria in 7 CFR 246.5(a) through (e) (f) together with the following criteria:
(a) and (b) remain the same.
(c) whether there are documented, written procedures for making referrals to and coordinating with the following services and programs which are operating in the service area of the local agency: prenatal care, immunizations, postnatal care, family planning, well-child services, early periodic screening and development testing, schools, dental screening, private physicians, health maintenance organizations, hospitals, expanded food and nutrition education program, community relief agencies, USDA food stamp program Supplemental Nutrition Assistance Program (SNAP), handicapped children's services Children's Special Health Care Services, and maternal and child health services.
(2) The department hereby adopts and incorporates herein by reference 7 CFR 246.5(a) through (e) (f), which is a federal agency rule setting forth requirements and procedures for local agency selection and the expansion, reduction, and disqualification of participating local agencies. Copies of 7 CFR 246.5(a) through (e) (f) may be obtained from the Department of Public Health and Human Services, Special Supplemental Nutrition Program for Women, Infants & Children (WIC), P.O. Box 202951, Helena, MT 59620-2951.
AUTH: 50-1-202, MCA
IMP: 50-1-202, MCA
37.59.202 AGREEMENTS WITH LOCAL AGENCIES (1) The department hereby adopts and incorporates herein by reference 7 CFR 246.6, which is a federal agency rule setting forth terms and requirements for agreements between the department and local agencies. Copies of 7 CFR 246.6 may be obtained from the Department of Public Health and Human Services, Special Supplemental Nutrition Program for Women, Infants & Children (WIC), P.O. Box 202951, Helena, MT 59620-2951.
AUTH: 50-1-202, MCA
IMP: 50-1-202, MCA
37.59.203 PERIODIC REVIEW AND DISQUALIFICATION OF LOCAL AGENCIES (1) The department shall will conduct periodic reviews of the qualifications of authorized local agencies under its jurisdiction. In conducting such reviews, the department shall will consider the program's history of prior program performance and the factors listed in (2) of this rule. Based upon the results of such reviews, the department may make appropriate adjustments among the participating local agencies, including the disqualification of a local agency when the department determines that another local agency can operate the program more effectively and efficiently. The department shall must implement the procedures established in (3) of this rule when disqualifying a local agency.
(2) The department may disqualify a local agency upon consideration of:
(a) and (b) remain the same.
(c) whether, following a review of local agency credentials in accordance with (4) of this rule, another local agency can operate the program more effectively and efficiently;
(d) the availability of other community resources to participants and the cost efficiency and cost effectiveness of the local agency in terms of both food and administrative and program services costs;
(e) through (h) remain the same.
(3) When disqualifying a local agency under the program, the department shall must:
(a) remains the same.
(b) provide the affected local agency with written notice not less than 60 days in advance of the pending action, which ; the notice shall must include an explanation of the reasons for disqualification, the date of disqualification, and, except in cases of the expiration of a local agency's agreement, the local agency's right to appeal as set forth in 7 CFR 246.18; and
(c) remains the same.
(4) The department hereby adopts and incorporates herein by reference the following:
(a) 7 CFR 246.18, which is a federal agency rule setting forth the notice and hearing procedures for local agencies, and food vendors retailers, and farmers who are denied participation or are disqualified from the program; and
(b) and (c) remain the same.
AUTH: 50-1-202, MCA
IMP: 50-1-202, MCA
37.59.301 REQUIREMENTS FOR LOCAL STATE AGENCY SELECTION OF FOOD VENDORS RETAILERS AND FARMERS (1) In selecting food vendors retailers to participate in the program, local agencies the state WIC agency shall will apply the requirements of 7 CFR 246.12(e) through (o) (v), and the following criteria:
(a) whether the place of the vendor's retailer's business is permanent; no stores on wheels may be allowed;
(b) whether the vendor retailer stocks and maintains appropriate quantities of authorized WIC foods;
(c) whether the vendor retailer is accessible to WIC clients;
(d) whether the vendor retailer has been disqualified from the USDA food stamp program SNAP;
(e) whether the vendor retailer has a valid, current business license from each appropriate Montana state agency, as may be required by law.
(2) In selecting farmers to participate in the program, the state agency will apply the requirements of 7 CFR 246.12(v):
(a) The farmer must grow farm-direct approved fruits and vegetables themselves and may sell only locally grown produce as part of their farm-direct participation.
(b) The farmer will agree to sell only the eligible, locally grown foods in exchange for Montana WIC benefits.
(c) The farmer will ensure that no conflict of interest exists between the farmer and the Montana WIC Program.
(d) Farmers must have and maintain a positive compliance history with any and all USDA FNS programs in which they are participating or have participated.
(2) (3) The department hereby adopts and incorporates herein by reference the following:
(a) 7 CFR 246.12(e) through (o) (v), which is a federal agency rule setting forth the authorization of food vendors retailers and farmers; requirements for food vendor agreements; periodic review of food vendor qualifications; guidelines for food vendor training; monitoring of food vendors; participant, retailer, and vendor farmer complaints and sanctions; requirements for control and reconciliation of food instruments benefits; and payment to food vendors retailers and farmers.
(b) remains the same.
AUTH: 50-1-202, MCA
IMP: 50-1-202, MCA
37.59.302 AGREEMENTS WITH FOOD VENDORS RETAILERS AND FARMERS (1) The department hereby adopts and incorporates herein by reference 7 CFR 246.12(f) (h) and (v), which is a federal agency rule setting forth terms and requirements for agreements between the department and food vendors retailers and farmers. Copies of this document may be obtained from the Department of Public Health and Human Services, Special Supplemental Nutrition Program for Women, Infants & Children (WIC), P.O. Box 202951, Helena, MT 59620-2951.
AUTH: 50-1-202, MCA
IMP: 50-1-202, MCA
37.59.303 PERIODIC REVIEW AND DISQUALIFICATION OF FOOD VENDORS RETAILERS AND FARMERS (1) The department (or local agency in consultation with the department), before re-authorization, shall will conduct periodic reviews of the operations of participating food vendors retailers and farmers. In conducting such reviews, the department or local agency may utilize an "educational buy" or a "compliance buy", as described in the state plan, "1990 State Plan for Montana's Special Supplemental Food Program for Women, Infants and Children (WIC)" (October 1989 edition), and shall will consider the following:
(a) and (b) remain the same.
(c) shared information from the Montana food stamp SNAP officer-in-charge;
(d) file review of one-half of the total currently authorized vendors;
(e) (d) on site follow-up to (1)(a) and (d) above when warranted by incomplete information or complaint;
(f) (e) whether the vendor retailer or farmer demonstrates ability to meet Montana WIC pProgram requirements, as evidenced by performance during the current agreement; and
(g) remains the same but is renumbered (f).
(2) Based upon such review, the department may take an adverse action, (other than a warning letter), against the vendor retailer or farmer, including disqualification of the food vendor retailer or farmer from participation in the program.
(3) When taking an adverse action, (other than a warning letter), against a vendor retailer or farmer, including disqualification of a food vendor retailer or farmer from the program, the department shall must provide the affected vendor retailer or farmer with written notice not less than 15 days in advance of the pending action. which The notice must include the reasons for the adverse action, the date of adverse action, and, except in cases of the expiration of the vendor's retailer's or farmer's WIC agreement, the vendor's retailer's or farmer's right to appeal as set forth in 7 CFR 246.18.
(4) The department hereby adopts and incorporates herein by reference the following:
(a) the "1990 2014 State Plan for Montana's Special Supplemental Food Nutrition Program for Women, Infants and Children (WIC)" (October 1989 edition), a comprehensive summary of applicable federal regulations, procedures, and forms used by the department; and
(b) 7 CFR 246.18, which is a federal agency rule setting forth the notice and hearing procedures for local agencies, retailers, and food vendors farmers who are denied participation or are disqualified from the program.
(c) Copies of these documents may be obtained from the Department of Public Health and Human Services, Special Supplemental Nutrition Program for Women, Infants & Children (WIC), P.O. Box 202951, Helena, MT 59620-2951.
AUTH: 50-1-202, MCA
IMP: 50-1-202, MCA
37.59.401 APPEALS BY PROGRAM PARTICIPANTS (1) remains the same.
(2) The processing of such requests and the conduct of such hearing shall be is in accordance with 7 CFR 246.9 and applicable sections of the "1990 State Plan for Montana's Special Supplemental Food Program for Women, Infants and Children (WIC)" (October 1989 edition), a comprehensive summary of applicable federal regulations, procedures, and forms used by the department state plan.
(3) The department hereby incorporates herein by reference the following:
(a) remains the same.
(b) the fair hearing requirements of the "1990 State Plan for Montana's Special Supplemental Food Program for Women, Infants and Children (WIC)" (October 1989 edition), a comprehensive summary of applicable federal regulations, procedures, and forms used by the department state plan.
(c) remains the same.
AUTH: 50-1-202, MCA
IMP: 50-1-202, MCA
37.59.402 APPEALS BY LOCAL AGENCIES, AND FOOD VENDORS RETAILERS, AND FARMERS (1) A local agency, or a food vendor retailer, or farmer which is denied participation or, during the course of a contract or agreement, is disqualified or its participation is otherwise adversely affected may request a fair hearing before the department. Expiration of a contract or agreement with a food vendor retailer, farmer, or local agency is not subject to appeal.
(2) The issuance of notice of adverse action, the processing of fair hearing requests, and the conduct of such hearings shall be are in accordance with the provisions of 7 CFR 246.18 and applicable sections of the "1990 State Plan for Montana's Special Supplemental Food Program for Women, Infants and Children (WIC)" (October 1989 edition) state plan.
(3) The department hereby adopts and incorporates herein by reference the following:
(a) 7 CFR 246.18, which is a federal agency rule setting forth the notice and hearing procedures for local agencies, retailers, and food vendors farmers who are denied participation or are disqualified from the program; and
(b) the fair hearing requirements for local agencies, retailers, and food vendors farmers set forth in the "1990 State Plan for Montana's Special Supplemental Food Program for Women, Infants and Children (WIC)" (October 1989 edition), a comprehensive summary of applicable federal regulations, procedures, and forms used by the department state plan.
(c) Copies of 7 CFR 246.18 and the local agency and food vendor fair hearing provisions of the "1990 State Plan for Montana's Special Supplemental Food Program for Women, Infants and Children (WIC)" (October 1989 edition) state plan may be obtained from the Department of Public Health and Human Services, Special Supplemental Nutrition Program for Women, Infants & Children (WIC), P.O. Box 202951, Helena, MT 59620-2951.
AUTH: 50-1-202, MCA
IMP: 50-1-202, MCA
4. STATEMENT OF REASONABLE NECESSITY
The department is proposing amendments to ARM 37.59.101, 37.59.102, 37.59.105, 37.59.109, 37.59.110, 37.59.201, 37.59.202, 37.59.203, 37.59.301, 37.59.302, 37.59.303, 37.59.401, and 37.59.402 pertaining to the Special Supplemental Nutrition Program for Women, Infants and Children (WIC). WIC is located in the Family and Community Health Bureau of the Montana Department of Public Health and Human Services. The program is sponsored by the Food and Nutrition Services (FNS) division of the United States Department of Agriculture (USDA).
The purpose of the proposed rule amendments is to update the administrative rules governing the WIC program. The rules have not been updated since their implementation in 1988. Most of the updates are simple changes in terminology, formatting, and references; however, there have also been some policy changes since that time.
ARM 37.59.101, 37.59.109, 37.59.201, 37.59.202, 37.59.203, 37.59.302, 37.59.303, 37.59.401, and 37.59.402
The department is proposing amendments to these rules to simplify the language used and to update terminology, formatting, and references to federal code. These amendments are necessary to ensure that these rules are current with the latest language used in the WIC Program.
ARM 37.59.102
The proposed amendments to the definitions serve to provide updates and clarification to terminology used in the administration of the WIC program. The chart that contained the incorporation citations and cross-referenced the CFR to the administrative rule number in this rule was deleted due to duplication. The chart will be added to the state plan so providers may use it as a tool to help them access the administrative rules.
ARM 37.59.105
The proposed amendment reflects the incorporation of the current year's CFR, which is updated annually. The incorporation by reference to the federal poverty guidelines, the Child Nutrition Act, and the WIC state plan were moved from ARM 37.59.102 to this rule.
ARM 37.59.110
The amendments to this rule include changing the name to more accurately reflect the rule. The previous title, "Nutrition Services Standards," could be confused with a document produced by FNS of the same name. The new title identifies the nutrition services of the program in general. References to outdated materials have been deleted and a summary of nutrition services provided by local staff have been added. The rule refers back to and incorporates by reference the state plan which provides more extensive detail of the activities at the local level.
ARM 37.59.301
The amendments to this rule consist of updates to references, terminology, and formatting. The term "vendor" has been replaced by "retailer" to reflect the addition of farmers as part of the program. The policies outlined in the state plan regarding the use of farmer's market benefits have also been summarized.
Fiscal Impact
There is no anticipated fiscal impact as a result of the proposed amendments to the ARM for the WIC program.
Alternative Considered
No alternatives to the proposed amendments have been considered. WIC policies reflect federal regulations and guidelines and are outlined in the state plan annually; the plan is then approved through FNS and thereby implemented.
5. Concerned persons may submit their data, views, or arguments either orally or in writing at the hearing. Written data, views, or arguments may also be submitted to: Kenneth Mordan, Department of Public Health and Human Services, Office of Legal Affairs, P.O. Box 4210, Helena, Montana, 59604-4210; fax (406) 444-9744; or e-mail [email protected], and must be received no later than 5:00 p.m., September 19, 2013.
6. The Office of Legal Affairs, Department of Public Health and Human Services, has been designated to preside over and conduct this hearing.
7. The department maintains a list of interested persons who wish to receive notices of rulemaking actions proposed by this agency. Persons who wish to have their name added to the list shall make a written request that includes the name, e-mail, and mailing address of the person to receive notices and specifies for which program the person wishes to receive notices. Notices will be sent by e-mail unless a mailing preference is noted in the request. Such written request may be mailed or delivered to the contact person in 5 above or may be made by completing a request form at any rules hearing held by the department.
8. An electronic copy of this proposal notice is available through the Secretary of State's web site at http://sos.mt.gov/ARM/Register. The Secretary of State strives to make the electronic copy of the notice conform to the official version of the notice, as printed in the Montana Administrative Register, but advises all concerned persons that in the event of a discrepancy between the official printed text of the notice and the electronic version of the notice, only the official printed text will be considered. In addition, although the Secretary of State works to keep its web site accessible at all times, concerned persons should be aware that the web site may be unavailable during some periods, due to system maintenance or technical problems.
9. The bill sponsor contact requirements of 2-4-302, MCA, do not apply.
10. With regard to the requirements of Chapter 318, Section 1, Laws of 2013, the department has determined that the amendment of the above-referenced rules will not significantly and directly impact small businesses.
/s/ Shannon L. McDonald /s/ Richard H. Opper
Shannon L. McDonald Richard H. Opper, Director
Rule Reviewer Public Health and Human Services
Certified to the Secretary of State August 12, 2013.
