(1) The purpose of the rules in subchapters 1 and 2 is to provide a clear procedural framework under which the department administers the federal Special Supplemental Nutrition Program for Women, Infants, and Children (WIC Program), which is sponsored by the Food and Nutrition Service (FNS) of the United States Department of Agriculture (USDA) and which has been administered in Montana by the department since approximately 1974.

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: 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 benefits.

(2) "Affirmative action plan" means that portion of the department plan which describes how the program will be initiated and expanded within the department's jurisdiction in accordance with 7 CFR 246.4(a).

(3) "Breastfeeding women" means women up to 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 Program at any point in time. Persons certified eligible but wait-listed are not considered to be participating in the WIC Program, 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, infants, or children.

(6) "Certification" means the application of criteria and procedures to assess and document each applicant's eligibility for the program.

(7) "Children" means persons who have had their first birthday but have not yet attained their fifth birthday.

(8) "Clinic" means a facility where applicants are certified.

(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 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 Commission 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 CPA on the staff of the local agency.

(10) "Days" means calendar days.

(11) "Disqualification" means the act of ending the program participation of a participant, authorized retailer, authorized farmer, or local agency, whether as a punitive sanction or for administrative reasons.

(12) "Dual participation" means simultaneous participation in the program in more than one WIC clinic.

(13) "Dyad" means a breastfeeding woman and the infant to whom she is providing breast milk who are participating on WIC.

(14) "Fair hearing" means the procedure through which an individual may appeal a department or local decision which results in denial of program participation, or suspension or termination from the program.

(15) "Family" means a group of related or non-related individuals 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.

(17) "Food costs" means the costs of supplemental foods, determined in accordance with 7 CFR 246.14(b).

(18) "Food delivery system" means the method used by the department and local agencies to provide supplemental foods to participants.

(19) "Food benefit" means a voucher, check, coupon, or electronic benefit transfer which is used by a participant to obtain supplemental foods.

(20) "Food package" means supplemental foods prescribed by a CPA for a WIC participant to meet demonstrated nutritional needs.

(21) "Health services" means ongoing, routine pediatric and obstetric care (such as infant and child care and prenatal and postpartum examinations) or referral for treatment.

(22) "Infants" means persons under 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 telephone.

(24) "Local agency" means:

(a) a public or private, nonprofit health or human service agency which provides health services, either directly or through contract, in accordance with 7 CFR 246.5;

(b) an Indian health service unit;

(c) an Indian tribe, band, or group recognized by the United States Department of the Interior 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 Department of the Interior, which operates a health clinic or is provided health services by an Indian health service unit.

(25) "Members of populations" means persons with a common special nutritional need who do not necessarily reside in a specific geographic area, such as off-reservation Indians or migrant farmworkers and their families.

(26) "Migrant farmworker" means an individual whose principal employment is in agriculture on a seasonal basis, and who has been so employed within the last 24 months, and who establishes, for the purposes of such employment, a temporary abode.

(27) "Monthly participation" means a total number of participants actually receiving benefits in any month, and the breastfeeding dyad member who does not receive food benefits while the other member does.

(28) "Nonprofit agency" means a private agency which is exempt from income tax under the Internal Revenue Code of 1954, as amended.

(29) "Nutrition counseling" means individualized professional guidance to assist a person in adjusting their daily food consumption to meet their health needs.

(30) "Nutrition education" means individual or group education sessions and the provision of information and educational materials designed to improve health status, achieve positive change in dietary habits, and emphasize relationships between nutrition and health, all in keeping with the individual's personal, cultural, and socioeconomic preferences.

(31) "Nutrition services" means nutrition intervention planned for and provided to a 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) detrimental or abnormal nutritional conditions detectable by biochemical or anthropometric measurements;

(b) their documented nutritionally related medical conditions;

(c) dietary deficiencies that impair or endanger health;

(d) conditions that directly affect the nutritional health of a person; or

(e) conditions that predispose persons to inadequate nutritional patterns or nutritionally related medical conditions.

(33) "Nutritionist" means a professional who meets the academic and experience requirements described in 37-25-102, MCA.

(34) "Participants" means pregnant women, breastfeeding women, postpartum women, infants, and children who are receiving supplemental foods or food 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 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 six months after termination of pregnancy.

(37) "Potential participants" means persons not certified on WIC but who are applying for WIC services, or who have been determined by some statistical means to be eligible for WIC services.

(38) "Poverty income guidelines" means the poverty income guidelines prescribed by the United States Department of Health and Human Services (DHHS). These guidelines are adjusted annually by DHHS, with each annual adjustment effective July 1 of each year. The poverty income guidelines prescribed by the DHHS are used for the Montana WIC Program.

(39) "Pregnant women" means women who have one or more embryos or fetuses in utero.

(40) "Priority system" means the ranking applied to persons on a waiting list to ensure that those at highest nutritional risk are the first ones chosen to fill vacancies.

(41) "Program" means the Special Supplemental Nutrition Program for Women, Infants, and Children (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 37-25-302, MCA.

(44) "Retail purchase system" means a system in which the participant obtains WIC foods through an authorized retailer or farmer.

(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.

(46) "Satellite" means a WIC clinic operated by the WIC 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.

(47) "Site" means a single clinic offering services to WIC participants within a defined project area that may contain more than one clinic.

(48) "Staffing pattern" means the recommended ratio of WIC staff to the number of participants served.

(49) "State plan" means the "2014 State Plan for Montana's Special Supplemental Nutrition Program for Women, Infants and Children (WIC)", 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.

(50) "Supplemental foods" means those foods containing nutrients determined 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.

(51) "Waiting list" means a list of applicants waiting to be accepted in the WIC Program when vacancies occur.

(1) This chapter of ARM Title 37 establishes a state WIC Program which is essentially the equivalent of the federal WIC Program.

(2) Where the department has adopted a federal regulation by reference, the following applies:

(a) References in the federal regulations to "Administrator" or "Regional Administrator," or the like, should be read to mean "department."

(b) Where the department incorporates by reference a subpart of a federal regulation, both the subpart and its constituent sections and subsections are also incorporated by reference.

(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.

(4) All material which is incorporated by reference may be obtained from the Department of Public Health and Human Services, Special Supplemental Nutrition Program for Women, Infants, and Children (WIC), P.O. Box 202951, Helena, MT 59620-2951. Interested persons seeking a copy of the CFR may address their requests directly to: Superintendent of Documents, U.S. Government Printing Office, Washington, D.C. 20402.

(1) As the state agency to which the United States Department of Agriculture (USDA) has delegated the administration of the WIC Program, 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 Program; 7 CFR Part 15, subparts A and 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), the department, as the state agency to which the USDA has delegated administration of the WIC Program, also receives numerous policies, forms, guidelines, and instructions from the USDA Food and Nutrition Service (FNS) issued under the FNS directives management system. The department has assembled such policies, forms, guidelines, instructions, and the state forms and guidelines required by such directives, into the state plan which is distributed to each participating local agency and is to be followed by each local agency in administering the program.

(3) The department adopts and incorporates by reference the following:

(a) 7 CFR Part 246, which are USDA regulations governing the WIC Program, 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 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 "2014 State Plan for Montana's Special Supplemental Nutrition Program for Women, Infants, and Children (WIC)."

(e) Copies of these 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.

(1) 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.

(1) In selecting new local agencies, the department will apply the criteria in 7 CFR 246.5(a) through (f) together with the following criteria:

(a) whether the program is located to be accessible to participants;

(b) whether the program exhibits sufficient financial integrity and solvency to assure its ability to continue program operations; and

(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 Supplemental Nutrition Assistance Program (SNAP), Children's Special Health Care Services, and maternal and child health services.

(2) The department adopts and incorporates by reference 7 CFR 246.5(a) through (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 (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.

(1) The department adopts and incorporates 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.

(1) The department will conduct periodic reviews of the qualifications of authorized local agencies under its jurisdiction. In conducting such reviews, the department will consider the program's history of prior program performance and the factors listed in (2). 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 must implement the procedures established in (3) when disqualifying a local agency.

(2) The department may disqualify a local agency upon consideration of:

(a) noncompliance with program rules;

(b) sufficiency of department funds to support the continued operation of all its existing local agencies at their current participation level;

(c) whether, following a review of local agency credentials in accordance with (4), 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) the percentages of participants in each priority level being served by the local agency and the percentage of need being met in each participant category;

(f) the relative position of the area or special population served by the local agency in the affirmative action plan;

(g) the local agency's place in the priority system established in 7 CFR 246.5(d)(1); or

(h) the capability of another local agency or agencies to accept the local agency's participants.

(3) When disqualifying a local agency under the program, the department must:

(a) make every effort to transfer affected participants to another local agency without disruption of benefits;

(b) provide the affected local agency with written notice not less than 60 days in advance of the pending action; the notice 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) ensure that the action is not in conflict with any existing written agreements between the department and the local agency.

(4) The department adopts and incorporates 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 farmers who are denied participation or are disqualified from the program; and

(b) 7 CFR 246.5(d)(1), which is a federal agency rule setting forth the priority system for selection of local agencies.

(c) Copies of 7 CFR 246.18 and 7 CFR 246.5(d)(1) 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.

(1) In selecting retailers to participate in the program, the state WIC agency will apply the requirements of 7 CFR 246.12(e) through (v), and the following criteria:

(a) whether the place of the retailer's business is permanent; no stores on wheels may be allowed;

(b) whether the retailer stocks and maintains appropriate quantities of authorized WIC foods;

(c) whether the retailer is accessible to WIC clients;

(d) whether the retailer has been disqualified from the USDA SNAP;

(e) whether the 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.

(3) The department adopts and incorporates by reference the following:

(a) 7 CFR 246.12(e) through (v), which is a federal agency rule setting forth the authorization of retailers and farmers; requirements for agreements; periodic review of qualifications; guidelines for training; monitoring; participant, retailer, and farmer complaints and sanctions; requirements for control and reconciliation of food benefits; and payment to retailers and farmers.

(b) Copies of 7 CFR 246.12(e) through (o) 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.

(1) The department adopts and incorporates by reference 7 CFR 246.12(h) and (v), which is a federal agency rule setting forth terms and requirements for agreements between the department and 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.

(1) The department (or local agency in consultation with the department), before re-authorization, will conduct periodic reviews of the operations of participating retailers and farmers, as described in the state plan, and will consider the following:

(a) a review of local agency monitoring reports;

(b) results of one or more on site visits;

(c) shared information from the Montana SNAP officer-in-charge;

(d) on site follow-up to (a) when warranted by incomplete information or complaint;

(e) whether the retailer or farmer demonstrates ability to meet Montana WIC Program requirements, as evidenced by performance during the current agreement; and

(f) whether patterns of participant use demonstrate compliance with the program.

(2) Based upon such review, the department may take an adverse action, other than a warning letter, against the retailer or farmer, including disqualification of the retailer or farmer from participation in the program.

(3) When taking an adverse action, other than a warning letter, against a retailer or farmer, including disqualification of a retailer or farmer from the program, the department must provide the affected retailer or farmer with written notice not less than 15 days in advance of the pending action. The notice must include the reasons for the adverse action, the date of adverse action, and, except in cases of the expiration of the retailer's or farmer's WIC agreement, the retailer's or farmer's right to appeal as set forth in 7 CFR 246.18.

(4) The department adopts and incorporates by reference the following:

(a) the "2014 State Plan for Montana's Special Supplemental Nutrition Program for Women, Infants and Children (WIC)", 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 farmers who are denied participation or are disqualified from the program.

(1) An individual who has been denied participation or been disqualified from the program by the local agency may request a fair hearing by contacting either the local agency or the department no later than 60 days after the local agency's adverse action has been communicated to the individual.

(2) The processing of such requests and the conduct of such hearing is in accordance with 7 CFR 246.9 and applicable sections of the state plan.

(3) The department incorporates by reference the following:

(a) 7 CFR 246.9, which is a federal agency rule setting forth fair hearing procedures for individuals who are denied participation or disqualified from the program; and

(b) the fair hearing requirements of the state plan.

(c) Copies of the above documents may be obtained from the Department of Public Health and Human Services, Special Supplemental Nutrition Program for Women, Infants, and Children (WIC), P.O. Box 202951, Helena, MT 59620-2951.

(1) A local agency, 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 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 are in accordance with the provisions of 7 CFR 246.18 and applicable sections of the state plan.

(3) The department adopts and incorporates 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 farmers who are denied participation or are disqualified from the program; and

(b) the fair hearing requirements for local agencies, retailers, and farmers set forth in the state plan.

(c) Copies of 7 CFR 246.18 and the local agency and retailer and farmer fair hearing provisions of the state plan may be obtained from the Department of Public Health and Human Services, Special Supplemental Nutrition Program for Women, Infants, and Children (WIC), P.O. Box 202951, Helena, MT 59620-2951.