Section 253.06. State supplemental food program for women, infants and children.

 

(1)   Definitions. In this section:

(a) “Authorized food" means food identified by the department in accordance with 7 CFR 246.10 as acceptable for use under the federal special supplemental food program for women, infants and children under 42 USC 1786 .

(b) “Authorized vendor" means a vendor that has been authorized by the department to accept drafts from participants and have the drafts redeemed by the department.

(c) “Draft" means the negotiable instrument distributed by the department for use by a participant to purchase authorized food.

(cm) “Food distribution center" means an entity, other than a vendor, that is under contract with the department under sub. (3m) to distribute authorized food to participants.

(d) “Participant" means a person who is eligible for services under this section and who receives services under this section.

(dm) “Proxy" means a person who has been designated in writing by a participant or by the department to obtain and exchange drafts for authorized food on behalf of the participant.

(e) “Vendor" means a grocery store or pharmacy that sells authorized food.

(f) “Vendor stamp" means a rubber stamp provided to a vendor or food distribution center by the department for the purpose of validating drafts.

(2)   Use of funds. From the appropriation under s. 20.435 (1) (em) , the department shall supplement the provision of supplemental foods, nutrition education, and other services, including nutritional counseling, to low-income women, infants, and children who meet the eligibility criteria under the federal special supplemental food program for women, infants, and children authorized under 42 USC 1786 . To the extent that funds are available under this section and to the extent that funds are available under 42 USC 1786 , the department shall provide the supplemental food, nutrition education, and other services authorized under this section and shall administer that provision in every county. The department may enter into contracts for this purpose.

(3)   Authorization of vendors.

(a) The department may authorize a vendor to accept drafts only if the vendor meets all of the following conditions:

1. The vendor submits to the department a completed application.

2. The vendor meets the minimum requirements for authorization, as established by the department by rule under sub. (5) (a) 1.

3. The vendor does not have any outstanding fines, forfeitures, or recoupments, or costs, fees, and surcharges imposed under ch. 814 , that were levied against that vendor for a violation of this section or for a violation of rules promulgated under this section. This subdivision does not apply if the vendor has contested the fine, forfeiture, or recoupment, or costs, fees, and surcharges imposed under ch. 814 , and has not exhausted administrative or judicial review.

4. The vendor is fit and qualified, as determined by the department. In determining whether a vendor is fit and qualified, the department shall consider any relevant conviction of the vendor or any of the vendor's employees for civil or criminal violations substantially related to the operation of a grocery store or pharmacy.

(bg) The department may limit the number of vendors that it authorizes under this subsection if the department determines that the number of vendors already authorized under this subsection is sufficient to permit participants to obtain authorized food conveniently.

(bm) The department shall approve or deny initial authorization within 90 days after the receipt of a completed application. If the application is denied, the department shall give the applicant reasons, in writing, for the denial and shall inform the applicant of the right to appeal that decision under sub. (6) .

(c) The department may not redeem drafts submitted by a person who is not an authorized vendor except as provided in sub. (3m) .

(3m)   Food distribution centers.

(a) The department may contract for an alternative system of authorized food distribution with an entity other than a vendor only if the entity meets all of the following requirements:

1. The entity meets the minimum requirements established by the department by rule under sub. (5) (a) 1.

2. The entity does not have any outstanding fines, forfeitures, or recoupments, or costs, fees, and surcharges imposed under ch. 814 , that were levied against that entity for a violation of this section or for a violation of rules promulgated under this section. This subdivision does not apply if the entity has contested the fine, forfeiture, or recoupment, or costs, fees, and surcharges imposed under ch. 814 , and has not exhausted administrative or judicial review.

3. The entity is fit and qualified, as determined by the department.

(b) The department shall redeem valid drafts submitted by a food distribution center.

(4)   Prohibited practices.

(a) No person may do any of the following:

1. Accept drafts or submit drafts to the department for redemption without authorization.

2. Provide cash or commodities, other than authorized food, in exchange for drafts or in exchange for authorized food purchased with a draft.

3. Accept a draft other than in exchange for authorized food that is provided by the person.

3m. Provide authorized food or other commodities to a participant or proxy in exchange for a draft accepted by a 3rd party.

4. Enter on a draft a dollar amount that is higher than the actual retail price of the item for which the draft was used.

5. Require a participant or proxy to sign a draft before entering the dollar amount on the draft in permanent ink.

6. Accept a draft except during the period specified on the draft.

7. Provide materially false information to the department or fail to provide in a timely manner material information that the department requests.

8. Duplicate a vendor stamp or use a stamp other than a vendor stamp for any purpose for which a vendor stamp is required.

9. Submit for redemption a draft to someone other than the department.

10. Accept a draft from someone other than a participant or proxy, except that the department shall accept for redemption valid drafts from vendors and food distribution centers.

(b) A person who violates any provision of this subsection is guilty of a Class I felony for the first offense and is guilty of a Class H felony for the 2nd or subsequent offense.

(c)

1. Whenever a court imposes a fine, forfeiture, or recoupment for a violation of this subsection or imposes a forfeiture or recoupment for a violation of rules promulgated under sub. (5) , the court shall also impose a supplemental food enforcement surcharge under ch. 814 in an amount of 50 percent of the fine, forfeiture, or recoupment imposed. If multiple offenses are involved, the court shall base the supplemental food enforcement surcharge on the total fine, forfeiture, and recoupment amounts for all offenses. When a fine, forfeiture, or recoupment is suspended in whole or in part, the court shall reduce the supplemental food enforcement surcharge in proportion to the suspension.

2. If a fine or forfeiture is imposed by a court of record, after a determination by the court of the amount due, the clerk of the court shall collect and transmit such amount to the county treasurer as provided in s. 59.40 (2) (m) . The county treasurer shall then make payment to the secretary of administration as provided in s. 59.25 (3) (f) 2.

(5)   Rules and penalties.

(a) The department shall promulgate rules to establish all of the following:

1. Minimum qualification standards for the authorization of vendors and for the awarding of a contract to an entity under sub. (3m) .

2. Standards of operation for authorized vendors and food distribution centers, including prohibited practices.

3. Minimum requirements for participants, including prohibited practices.

4. Procedures for approving or denying an application to be a participant, including appeal procedures.

(b) A person who violates any rule promulgated under this subsection may be subject to any of the following:

1. Denial of the application to be a participant or authorized vendor.

2. Suspension or termination of authorization for an authorized vendor or, in the case of a food distribution center, termination of the contract.

3. Disqualification from the program under this section for a participant.

4. Forfeiture of not less than $10 nor more than $1,000.

5. Recoupment.

(c) Whenever the department imposes a forfeiture or recoupment for a violation of rules promulgated under this subsection, the department shall also impose an enforcement assessment in an amount of 50 percent of the forfeiture or recoupment imposed. If multiple offenses are involved, the department shall base the enforcement assessment upon the total forfeiture and recoupment amounts for all offenses. When a forfeiture or recoupment is suspended in whole or in part, the department shall reduce the enforcement assessment in proportion to the suspension.

(d) The department may directly assess a forfeiture provided for under par. (b) 4. , recoupment provided for under par. (b) 5. and an enforcement assessment provided for under par. (c) . If the department determines that a forfeiture, recoupment or enforcement assessment should be levied, or that authorization or eligibility should be suspended or terminated, for a particular violation or for failure to correct it, the department shall send a notice of assessment, suspension or termination to the vendor, food distribution center or participant. The notice shall inform the vendor, food distribution center or participant of the right to a hearing under sub. (6) and shall specify all of the following:

1. The amount of the forfeiture assessed, if any.

2. The amount of the recoupment assessed, if any.

3. The amount of the enforcement assessment, if any.

4. The violation.

5. The statute or rule alleged to have been violated.

6. If applicable, that the suspension or termination of authorization of the vendor or eligibility of the participant is effective beginning on the 15th day after receipt of the notice of suspension or termination.

(e) The suspension or termination of authorization of a vendor or eligibility of a participant shall be effective beginning on the 15th day after receipt of the notice of suspension or termination. All forfeitures, recoupments, and enforcement assessments shall be paid to the department within 15 days after receipt of notice of assessment or, if the forfeiture, recoupment, or enforcement assessment is contested under sub. (6) , within 10 days after receipt of the final decision after exhaustion of administrative review, unless the final decision is adverse to the department or unless the final decision is appealed and the decision is stayed by court order under sub. (7) . The department shall remit all forfeitures paid to the secretary of administration for deposit in the school fund. The department shall deposit all enforcement assessments in the appropriation under s. 20.435 (1) (gr) .

(f) The attorney general may bring an action in the name of the state to collect any forfeiture or recoupment imposed under par. (b) or enforcement assessment imposed under par. (c) , if the forfeiture, recoupment or enforcement assessment has not been paid following the exhaustion of all administrative and judicial reviews. The only issue that may be contested in any such action is whether the forfeiture or enforcement assessment has been paid.

(6)   Appeal procedure.

(a) Any hearing under s. 227.42 granted by the department under this section may be conducted before the division of hearings and appeals in the department of administration.

(b) A person may contest an assessment of forfeiture, recoupment or enforcement assessment, a denial, suspension or termination of authorization or a suspension or termination of eligibility by sending a written request for hearing under s. 227.44 to the division of hearings and appeals in the department of administration within 10 days after the receipt of the notice issued under sub. (3) (bm) or (5) (d) . The administrator of the division of hearings and appeals may designate a hearing examiner to preside over the case and recommend a decision to the administrator under s. 227.46 . The decision of the administrator of the division of hearings and appeals shall be the final administrative decision. The division of hearings and appeals shall commence the hearing and issue a final decision within 60 days after receipt of the request for hearing unless all of the parties consent to a later date. Proceedings before the division of hearings and appeals are governed by ch. 227 . In any petition for judicial review of a decision by the division of hearings and appeals, the department, if not the petitioner who was in the proceeding before the division of hearings and appeals, shall be the named respondent.

(7)   Injunction procedure. No injunction may be issued in any proceeding for review under ch. 227 of a decision of the division of hearings and appeals under sub. (6) , suspending or staying the decision except upon application to the circuit court or presiding judge thereof, notice to the department and any other party and hearing. No injunction that delays or prevents a decision of the division of hearings and appeals from becoming effective may be issued in any other proceeding or action in any court unless the parties to the proceeding before the division of hearings and appeals in which the order was made are also parties to the proceeding or action before the court.

(8)   Inspection of premises. The department may visit and inspect each authorized vendor and each food distribution center, and for such purpose shall be given unrestricted access to the premises described in the authorization or contract.

2009 a. 28 s. 1217 ; Stats. 2009 s. 253.06.