7 C.F.R. § 246.18

Administrative review of State agency actions

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(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;

(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 SNAP 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 denial is a WIC vendor sanction or a SNAP 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 SNAP 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 SNAP 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 SNAP.

(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 above-50-percent vendors;

(C) The validity or appropriateness of the State agency's participant access 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 SNAP (§ 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

(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 or farmers' market appeals—(i) Adverse actions. The State agency shall provide a hearing procedure whereby farmers or farmers' markets adversely affected by certain actions of the State agency may appeal those actions. A farmer or farmers' market 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 or farmers' markets. 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 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. The State agency must make all other adverse actions effective no earlier than 15 days after the date of the notice of 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 an administrative review, no later than the date the farmer or farmers' market 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 farmers' market 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 SNAP. Such disqualification is not subject to administrative or judicial review under SNAP.”

(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 the request for an administrative review from a vendor, farmer, or farmer's market, 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, farmer, or farmers' market 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, farmer, or farmers' market concerning the cause(s) for the adverse action and the response from the vendor, farmer, or farmers' market.

(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 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 farmers' market 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 farmers' market or local agency.

(f) Judicial review. If the review decision upholds the adverse action against the vendor, farmer or farmers' market or local agency, the State agency must inform the vendor, farmer or farmers' market 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; 79 FR 12300, Mar. 4, 2014]

Notes of Decisions

Cited in 16 cases (1 in the last 5 years), 1987–2021 · leading case: Med RX/Sys., P.L.L.C. v. Texas Dep't of State Health Servs., 633 F. App'x 607 (5th Cir. 2016).

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Med RX/Sys., P.L.L.C. v. Texas Dep't of State Health Servs., 633 F. App'x 607 (5th Cir. 2016). · cites it 3× “See 7 C.F.R. § 246.18 (a)(l)(iii)(J). The version of WIC Policy WV:01.”

Babies Right Start, Inc. v. Georgia Dep't of Pub. Health, 748 S.E.2d 404 (Ga. 2013). · cites it 2× “BRS filed a motion to dismiss on the ground that the ALJ’s decision was the “final State agency action” under 7 CFR § 246.18 (e) and, to the extent the Georgia APA authorized further administrative review, it was preempted by the federal regulation.”

East Food & Liquor, Inc. v. United States, 50 F.3d 1405 (7th Cir. 1995). · cites it 3× “See 7 C.F.R. § 246.18 (d). We do not believe that FNS can avoid an independent judicial determination by relying upon a state procedure that does not permit such a determination.”

Morel v. Comm'r of Pub. Health, 811 A.2d 1256 (Conn. 2002). “” 7 C.F.R. § 246.18 (a) (1999). 14 The defendant provided the hearing to the plaintiff pursuant to this regulation.”

Ramzi, Inc. v. Dep't of Pub. Health, 10 N.E.3d 139 (Mass. App. Ct. 2014). · cites it 2× “The department also argues for the first time in its supplemental submission that both the vendor agreement and 7 C.F.R. § 246.18 (a)(1)(iii) bar administrative review of a decision not to notify a vendor of an initial violation.”

Banco De Ponce v. Hinsdale Supermarket Corp., 663 F. Supp. 813 (E.D.N.Y 1987). “Food vendors who are adversely affected by agency action are relegated by 7 C.F.R. § 246.18 to state procedures for a fair hearing.”

Pontiac Food Ctr. v. Dep't of Cmty. Health, 766 N.W.2d 42 (Mich. Ct. App. 2008). · cites it 4× “3 The minimum administrative due process that the state agency must provide to the food vendor is set forth in 7 CFR 246.18. East Food & Liquor, Inc v *337 United States, 50 F3d 1405 , 1408 n 2 (CA 7, 1995).”

Crystal Food & Liquor, Inc. v. Howard Consultants, Inc., 658 N.E.2d 1279 (Ill. App. Ct. 1995). “” 7 C.F.R. §§ 246.18 (a), (b) (1992). The Department regulations provided for each of the Federal requirements.”

PONTIAC FOOD CTR. v. Dep't of Cmty. Health, 766 N.W.2d 42 (Mich. Ct. App. 2009). · cites it 4× “[3] The minimum administrative due *46 process that the state agency must provide to the food vendor is set forth in 7 CFR 246.18. East Food & Liquor, Inc. v.”

Babies Right Start, Inc. v. Georgia Dch (Ga. Ct. App. 2012). · cites it 8× “The ALJ classified its decision as the “Final Decision” of the Department, concluding that its decision constituted the “final State agency action” pursuant to 7 CFR § 246.18 (e). In March 2011, the Department filed an Application for Agency Review with the Agency Appeals…”

Alabama Dep't of Pub. Health v. Bessemer Meat/Se. Meat, 216 So. 3d 448 (Ala. Civ. App. 2016). “See 7 C.F.R. § 246.18 (a)(l)(i)(C); Ala. Admin.”

Alex Mkt., Inc. v. DPH/WIC Prog., 32 Mass. L. Rptr. 616 (Mass. Super. Ct. 2015). · cites it 2× “DPH’s further argument that this Court is barred by 7 CFR §246.18 (a)(l)(iii) from reviewing DPH’s decision not to give Alex Market prior written notice of its alleged violations is unpersuasive.”

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— 7 C.F.R. § 246.18(a) — 2 cases

Pontiac Food Ctr. v. Dep't of Cmty. Health, 766 N.W.2d 42 (Mich. Ct. App. 2008). “3 The minimum administrative due process that the state agency must provide to the food vendor is set forth in 7 CFR 246.18. East Food & Liquor, Inc v *337 United States, 50 F3d 1405 , 1408 n 2 (CA 7, 1995).”

PONTIAC FOOD CTR. v. Dep't of Cmty. Health, 766 N.W.2d 42 (Mich. Ct. App. 2009). “[3] The minimum administrative due *46 process that the state agency must provide to the food vendor is set forth in 7 CFR 246.18. East Food & Liquor, Inc. v.”

— 7 C.F.R. § 246.18(a)(l)(iii)(J) — 1 case

Med RX/Sys., P.L.L.C. v. Texas Dep't of State Health Servs., 633 F. App'x 607 (5th Cir. 2016). “See 7 C.F.R. § 246.18 (a)(l)(iii)(J). The version of WIC Policy WV:01.”

— 7 C.F.R. § 246.18(b) — 3 cases

State Dep't of Pub. Health v. Boackle-Phipps Foods, 594 So. 2d 1234 (Ala. Civ. App. 1991).

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