902 KAR 18:030. Participant abuse.

CABINET FOR HEALTH AND FAMILY SERVICES

Department for Public Health

Division of Maternal and Child Health

(New Administrative Regulation)

902 KAR 18:030. Participant abuse.

RELATES TO: KRS Chapter 13B, 194A.050, 194A.505, 194A.990, 7 C.F.R. Parts 246, 278.6, 21 U.S.C. 802 sec. 102

STATUTORY AUTHORITY: KRS 194A.050, 211.090(3), 7 C.F.R. Part 246, 42 U.S.C. 1786

NECESSITY, FUNCTION, AND CONFORMITY: 42 U.S.C. 1786 and 7 C.F.R. Part 246, provide for grants for state operation of the Special Supplemental Nutrition Program for Women, Infants and Children (WIC). KRS 194A.050(1) authorizes the Cabinet for Health and Family Services to promulgate administrative regulations as necessary to qualify for the receipt of federal funds. This administrative regulation establishes the Participant Abuse of the Program for the Kentucky Special Supplemental Nutrition Program for Women, Infants and Children (WIC).

Section 1. Participant Abuse of the Program. (1) The cabinet or a local agency shall issue a written warning for the following suspected acts for which a complaint is received concerning a participant:

(a) Purchasing unauthorized foods;

(b) Redeeming WIC benefits at an unauthorized store;

(d) Returning supplemental foods to a vendor for cash.

(2) The cabinet or a local agency shall take the following specified action for an intentional act of abuse by a participant that is documented:

(a) Redeeming WIC benefits that have previously been reported to the local agency as being lost or stolen and which have been replaced.

1. First offense: written warning.

2. Second and all subsequent offenses: claim issued for amount of WIC benefits redeemed.

(b) Purchasing unauthorized food.

1. First offense: written warning.

2. Second and all subsequent offenses: one (1) month suspension from the WIC Program.

1. First offense: written warning.

2. Second and all subsequent offenses: one (1) month suspension from the WIC Program.

(d) Threatening physical or verbal abuse of clinic or vendor staff.

1. First offense: written warning.

2. Second and all subsequent offenses: one (1) month suspension from the WIC Program.

(e) Physical abuse of clinic or vendor staff.

1. First offense: three (3) month suspension from the WIC Program.

2. Second and all subsequent offenses: three (3) month suspension from the WIC Program.

(f) Exchanging or selling supplemental food or WIC benefits with another individual, group, or vendor.

1. First offense: three (3) month suspension from the WIC Program.

2. Second and all subsequent offenses: three (3) month suspension from the WIC Program.

(g) Exchanging supplemental food or a WIC benefits for credit, nonfood items, or supplemental food in excess of WIC benefits prescribed.

1. First offense: three (3) month suspension from the WIC Program.

2. Second and all subsequent offenses: three (3) month suspension from the WIC Program..

(h) Dual participation in more than one (1) WIC Program or participation in both the WIC Program and the Commodities Supplemental Food Program.

1. First offense: written warning and immediate termination from one (1) of the WIC programs. The continuing WIC agency shall be chosen based upon the participant’s residence or services.

2. Second and all subsequent offenses: one (1) year disqualification from the WIC Program and a claim issued for WIC benefits redeemed.

(i) Knowingly and deliberately making a false or misleading statement, or misrepresenting, concealing, or withholding a fact in order to obtain program benefits.

1. First offense: three (3) month disqualification from the WIC Program and a claim

issued for improperly issued benefits.

2. Second and all subsequent offenses: one (1) year disqualification from the WIC Program and a claim issued for improperly issued benefits.

(j) Intent to sell supplemental foods.

1. First offense: Three (3) month suspension from the WIC Program.

2. Second and all subsequent offenses: Three (3) month suspension from the WIC Program.

(3) Mandatory disqualification. Except as provided in subsections (4) and (5) of this section, a participant is disqualified from the WIC Program for one (1) year if the state WIC or local WIC agency assesses:

(a) A claim of $100 or more;

(b) A second or subsequent claim of any dollar amount.

(4) A mandatory disqualification may not be imposed if, within thirty (30) days of receipt of the claim letter demanding repayment:

(a) Full restitution is made;

(b) A repayment schedule is agreed on; or

(c) The participant is an infant, child, or under age eighteen (18), the state WIC or local WIC agency approves the designation of a proxy.

(5) A participant may be permitted to reapply to participate in the WIC Program before the end of a mandatory disqualification period if:

(a) Full restitution is made;

(b) A repayment schedule is agreed upon; or

(c) The participant is an infant, child, or under age eighteen (18), the state WIC or local WIC agency approves the designation of a proxy.

(6) The amount of a claim shall be determined by the value of the WIC benefits redeemed. If the claim is not paid, the participant shall be denied application to the WIC Program for the number of months of benefits which were used to calculate the claim amount.

(7) A participant with a pattern of abuse of the WIC Program shall be referred to the Office of the Inspector General for prosecution under KRS 194A.505.

(8) Activities prohibited by KRS 194A.505 apply to participants, vendors, and agency personnel. Penalties in KRS 194A.990 apply to participants, vendors, and agency personnel who have violated KRS 194A.505.

STEVE DAVIS, M.D., Acting Commissioner

AUDREY TAYSE HAYNES, Secretary

APPROVED BY AGENCY: December 13, 2012

FILED WITH LRC: December 14, 2012 at 9 a.m.

PUBLIC HEARING AND PUBLIC COMMENT PERIOD: A public hearing on this administrative regulation shall, if requested, be held on January 22, 2013 at 9:00 a.m. in Suite C. Individuals interested in attending this hearing shall notify this agency in writing by January 14, 2013, five (5) workdays prior to the hearing, of their intent to attend. If no notification of intent to attend the hearing is received by that date, the hearing may be canceled. The hearing is open to the public. Any person who attends will be given an opportunity to comment on the proposed administrative regulation. A transcript of the public hearing will not be made unless a written request for a transcript is made. If you do not wish to attend the public hearing, you may submit written comments on the proposed administrative regulation. You may submit written comments regarding this proposed administrative regulation until close of business January 31, 2013. Send written notification of intent to attend the public hearing or written comments on the proposed administrative regulation to:

CONTACT PERSON: Jill Brown, Office of Legal Services, 275 East Main Street 5 W-B, Frankfort, Kentucky 40601, phone 502-564-7905, fax 502-564-7573.

REGULATORY IMPACT ANALYSIS AND TIERING STATEMENT

Contact Person: Carlene Egbert 564-3827 x 3840

(1) Provide a brief summary of:

(a) What this administrative regulation does: This administrative regulation addresses the procedures to follow if participant abuse has occurred or has been suspected.

(b) The necessity of this administrative regulation: KRS 194A.505 outlines prohibited activities that apply to participants, in addition to others. Penalties in KRS 194A.990 may be imposed against persons determined to have violated KRS 194A.505 by committing fraud against an assistance program. This administrative regulation addresses the procedures to follow if participant abuse has occurred or is suspected.

(c) How this administrative regulation conforms to the content of the authorizing statutes: The Cabinet has responsibility under KRS 194A.050 to promulgate, administer, and enforce those administrative regulations necessary to implement programs mandated by federal law, or to qualify for the receipt of federal funds.

(d) How this administrative regulation currently assists or will assist in the effective administration of the statutes: This administrative regulation sets the violations and applicable sanctions for Kentucky Supplemental Nutrition Program for Woman, Infant and Child Program (WIC).

(2) If this is an amendment to an existing administrative regulation, provide a brief summary of:

(a) How the amendment will change this existing administrative regulation: This is a new regulation.

(b) The necessity of the amendment to this administrative regulation: This is a new regulation.

(d) How the amendment will assist in the effective administration of the statutes: This is a new regulation.

(3) List the type and number of individuals, businesses, organizations, or state and local governments affected by this administrative regulation: The Department for Public Health, Local Health Agencies (61), WIC sites (148) WIC Vendors (886) and WIC Participants (128,883).

(4) Provide an analysis of how the entities identified in question (3) will be impacted by either the implementation of this administrative regulation, if new, or by the change, if it is an amendment, including:

(a) List the actions that each of the regulated entities identified in question (3) will have to take to comply with this administrative regulation or amendment: No additional changes in the actions will need to be made from the Department of Public Health, Local Health Agencies, Local WIC Sites, Vendors and WIC Participants..

(b) In complying with this administrative regulation or amendment, how much will it cost each of the entities identified in question (3): The Department for Public Health, Local Agencies, Local WIC sites, Vendors and WIC participants will not experience an increase in cost to comply with the regulation.

(c) As a result of compliance, what benefits will accrue to the entities identified in question (3): This regulation will provide better understanding and guidance as to the procedures to follow if a possible abuse or suspected abuse of the Supplemental Nutrition Program for Woman, Infants and Children (WIC) occurs.

(5) Provide an estimate of how much it will cost the administrative body to implement this administrative regulation:

(a) Initially: There would be no additional cost to the Cabinet to implement and enforce this administrative regulation.

(b) On a continuing basis: On a continuing basis, additional funding is not required.

(6) What is the source of the funding to be used for the implementation and enforcement of this administrative regulation: The initial funding was from a grant from the USDA Food and Nutrition Services. There would be no additional cost to the Cabinet to implement and enforce this administrative regulation.

(7) Provide an assessment of whether an increase in fees or funding will be necessary to implement this administrative regulation, if new or by the change if it is an amendment: No fees or new funding will be required to implement this regulation.

(8) State whether or not this administrative regulation established any fees or directly or indirectly increased any fees: This regulation does not establish fees either directly or indirectly.

(9) TIERING: Is tiering applied? (Explain why or why not) Tiering is not appropriate in this administrative regulation since it applies equally to all those individuals or entities.

FISCAL NOTE ON STATE OR LOCAL GOVERNMENT

1. What units, parts or divisions of state or local government (including cities, counties, fire departments, or school districts) will be impacted by this administrative regulation? This regulation will impact the Department of Public Health, Local Health Agencies, WIC Sites, WIC Vendors and WIC participants.

2. Identify each state or federal statute or federal regulation that requires or authorizes the action taken by the administrative regulation. KRS 194A.050 authorizes the Department for Public Health to promulgate, administer, and enforce those administrative regulations in accordance with C.F.R. 7, Chapter 11, Volume 4, Part 246.

3. Estimate the effect of this administrative regulation on the expenditures and revenues of a state or local government agency (including cities, counties, fire departments, or school districts) for the first full year the administrative regulation is to be in effect.

(a) How much revenue will this administrative regulation generate for the state or local government (including cities, counties, fire departments, or school districts) for the first year? No new revenue will be generated for state or local government in the first year of implementing this regulation.

(b) How much revenue will this administrative regulation generate for the state and local government (including cities, counties, fire departments, or school districts) for subsequent years? No new revenue will be generated for state or local government in the subsequent years of implementing this regulation.

(c) How much will it cost to administer this program for the first year? There is no cost to the local or state governments to implement this regulation the first year.

(d) How much will it cost to administer this program for the subsequent years? There is no cost to the local or state governments to implement this regulation for subsequent years.

Note: If specific dollar estimates cannot be determined, provide a brief narrative to explain the fiscal impact of the administrative regulations.

Revenues (+/-):

Expenditures (+/-):

Other Explanation: