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| Montana Administrative Register Notice 37-781 | No. 5 03/10/2017 | |
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BEFORE THE DEPARTMENT OF PUBLIC HEALTH AND HUMAN SERVICES OF THE STATE OF MONTANA
TO: All Concerned Persons
1. On March 30, 2017, at 1:30 p.m., the Department of Public Health and Human Services will hold a public hearing in Room 207 of the Department of Public Health and Human Services Building, 111 North Sanders, at Helena, Montana, to consider the proposed adoption 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 the Department of Public Health and Human Services no later than 5:00 p.m. on March 22, 2017, 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 dphhslegal@mt.gov.
3. The rules as proposed to be adopted provide as follows:
NEW RULE I SENIOR FARMERS' MARKET NUTRITION PROGRAM (SFMNP): PURPOSE (1) The purpose of this subchapter is to provide a framework under which the department administers the SFMNP enacted under Section 4402 of the Farm Security and Rural Investment Act of 2002, codified at 7 U.S.C. 3007, and operated by the United States Department of Agriculture under the authority granted to it through 7 CFR 249.
NEW RULE II SENIOR FARMERS' MARKET NUTRITION PROGRAM (SFMNP): DEFINITIONS Unless otherwise indicated, the following definitions apply throughout this chapter: (1) "Adverse Action" means an action taken by the department in the administration of the SFMNP having a negative impact on a farmer, participant, or local agency that has an agreement. (2) "Agreement" means a written legal document or contract binding the farmer, participant, or local agency and the local agency or department to designated terms and conditions. (3) "Application" means a written request submitted on a form provided by the department or local agencies indicating interest in participating in SFMNP either as a senior as defined in (14) or a farmer as defined in (9). (4) "Bulk purchase program" means a program model in which bulk quantities of certain produce items are purchased directly from authorized farmers by the local agency and are then equitably divided among and distributed directly to eligible SFMNP participants. (5) "Coupon" means a voucher or other negotiable financial instrument by which benefits are issued under the SFMNP. (6) "Department" means the Department of Public Health and Human Services, Aging Services Bureau. (7) "Disqualification" means the act of terminating the agreement of an authorized farmer, participant, or local agency for noncompliance with program requirements. (8) "Eligible foods" means fresh, nutritious, unprocessed, unprepared, locally grown fruits, vegetables, honey, and herbs for human consumption. (9) "Farmer" means an individual residing within Montana authorized by the department to sell eligible fruit and vegetables at a participating farmers' market to a participant at a farmers' market. (10) "Local agency" means any nonprofit or local government agency that is contracted to certify an eligible participant, issue coupons, or arrange for distribution of eligible foods through a Bulk Purchase Program. (11) "Locally grown" means grown in the state of Montana. (12) "Participant" means a person or household who meets the eligibility requirements of the SFMNP and to whom coupons or bulk purchase have been issued. (13) "Proxy" means an individual authorized by an eligible senior to act on the senior's behalf, including application for certification, receipt of SFMNP coupons, and use of SFMNP coupons at authorized outlets as long as the benefits are ultimately received by the eligible senior. (14) "Senior" means an individual 60 years of age or older. (15) "Senior Farmers' Market Nutrition Program (SFMNP)" means the Senior Farmers' Market Nutrition Program authorized by 7 U.S.C. 3007, and provided in 7 CFR 249. (16) "SFMNP state plan" means the annual state plan for SFMNP that describes the manner in which the department intends to implement all aspects of program administration within its jurisdiction in accordance with 7 CFR 249. (17) "Summer farmers' market" means an association of local farmers who assemble at a defined location for the purpose of selling their produce directly to consumers during the summer market season. (18) "Violation" means an activity that is prohibited by participant, farmer, or local agency SFMNP agreement and 7 CFR 249.
NEW RULE III SENIOR FARMERS' MARKET NUTRITION PROGRAM (SFMNP): PARTICIPANT ELIGIBILITY AND BENEFITS (1) A participant will be considered eligible for the SFMNP if the following criteria are met: (a) the participant is a senior defined in [NEW RULE II]; (b) the participant income is at or below 185% of the annual federal poverty level; (c) the participant resides within the local agency area contracted to service the SFMNP; (d) the participant submits a completed current year's application through the contracted local agency in their area; and (e) the participant agrees to follow the terms and conditions of the signed participant application which then becomes the agreement. (2) Acceptance into the SFMNP is based on meeting the eligibility criteria in (1)(a) through (e) and available funding. (3) Eligible participants may designate a proxy to submit the application, shop at the farmers' market, or pick up their eligible foods from the contracted Bulk Purchase Program on their behalf, if the senior is unable to perform these actions. Eligible participants must submit a signed statement designating the individual as their authorized representative. (4) The eligible participant may designate a proxy at any point during the program's period of operation. (5) SFMNP funds are limited and benefits will be distributed on a first come first served basis. SFMNP coupons are subject to the following: (a) SFMNP coupons are only valid from June 1 through the first week in November of each year; (b) lost or stolen SFMNP coupons will not be replaced; and (c) an eligible participant who does not receive SFMNP coupons due to lack of available funding is not entitled to an appeal or fair hearing. (6) The participant who is denied or deemed ineligible for reasons other than those stated in (1)(a) through (c) and (5) has the right to appeal this action.
NEW RULE IV SENIOR FARMERS' MARKET NUTRITION PROGRAM (SFMNP): FARMER ELIGIBILITY AND PARTICIPATION (1) Only authorized farmers may accept SFMNP coupons in exchange for eligible foods. (2) In order to be eligible for participation in the SFMNP, a farmer applicant must: (a) complete or renew the farmer agreement provided by the department; (b) agree to follow the terms and conditions in the farmer agreement; and (c) complete the initial and annual SFMNP training provided by the department in accordance with 7 CFR 249.10. (3) Approved farmer agreements are valid for three consecutive summer farmers' market seasons.
NEW RULE V SENIOR FARMERS' MARKET NUTRITION PROGRAM (SFMNP): FARMER PARTICIPATION REQUIREMENTS AND VIOLATIONS (1) An authorized farmer must comply with SFMNP requirements contained in the terms and conditions of the farmer agreement and 7 CFR 249. (2) A farmer is in violation of the SFMNP if the farmer fails to: (a) comply with the SFMNP and terms and conditions of the farmer agreement as required in [NEW RULE IV]; and (b) accept the initial and annual training on SFMNP requirements provided by the department.
NEW RULE VI SENIOR FARMERS' MARKET NUTRITION PROGRAM (SFMNP): MONITORING OF FARMERS (1) The department will conduct monitoring reviews of the operations of randomly selected authorized farmers at the designated summer farmers' market locations. The annual monitoring review is conducted to determine: (a) whether the farmer demonstrates ability to meet Montana SFMNP requirements, as evidenced by the on-site observations, interviews, and third party information during the current agreement; and (b) whether patterns of participant use demonstrate compliance with the SFMNP. (2) The on-site monitoring and reviews will include no less than one-tenth of the total currently authorized farmers to include farmers that are considered high-risk in accordance with 7 CFR 249.10. High risk is defined as: (a) newly authorized farmers; (b) farmers about whom the department has received participant or local agency complaints; and (c) farmers who receive a proportionately high volume of coupons as compared to other farmers at the same summer market location. (3) On-site or follow-up contact by means other than (2)(a) through (c) may occur when warranted by incomplete information or complaint. (4) The department may conduct unannounced on-site monitoring visits.
NEW RULE VII SENIOR FARMERS' MARKET NUTRITION PROGRAM (SFMNP): FARMER DISQUALIFICATION AND SANCTIONS (1) Based upon outcome of the monitoring as defined in [NEW RULE VI], the department may take an adverse action against the farmer, including disqualification of the farmer from participation in the program. (2) A written warning may be issued for a first violation of the following: (a) noncompliance with SFMNP rules and procedures as outlined in the farmer agreement not specifically listed as a violation; (b) refusal to accept valid coupons for eligible produce; (c) failure to permit or comply with procedures regarding on-site monitoring visits; (d) charging participants a price for an item that is greater than that charged to nonparticipants; (e) charging for items not received; or (f) accepting coupons after the end of the summer market season. (3) A second violation of (2)(a) through (f) may result in a 15-day suspension during the current market season. (4) Suspension from the SFMNP for the remainder of the current market season may occur as a result of the following: (a) subsequent or continued violations described in (2)(a) through (f); (b) accepting SFMNP coupons for nonlocally grown produce; (c) exchanging ineligible products for coupons; (d) accepting coupons in exchange for cash; (e) cashing coupons for a nonauthorized farmer; (f) issuing cash change for purchases less than value of coupon; or (g) participating in discriminatory practices as defined in the terms and conditions of the farmer agreement and in accordance with 7 CFR 249.7. (5) A farmer will face immediate disqualification without reinstatement and liable to prosecution under applicable federal, state, or local laws if the farmer engages in illegal activity. (6) When taking an adverse action involving a suspension against or disqualification of a farmer from the SFMNP, the department will provide the affected 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 farmers' SFMNP agreement, the farmers' right to appeal as set forth in [NEW RULE IX].
NEW RULE VIII SENIOR FARMERS' MARKET NUTRITION PROGRAM (SFMNP): MONITORING, REVIEW, AND DISQUALIFICATION OF LOCAL AGENCIES (1) The department will conduct on-site monitoring reviews of the qualifications of authorized local agencies. In conducting such reviews, the department will consider the program's history of prior program compliance. On-site review will be conducted to determine program compliance and may include: (a) a file review of ten percent or more of completed participant applications; (b) review of procedures for secure storage of coupons, participant agreements, and other documents with identifying information; (c) review of procedures and documentation of coupon distribution, accountability, and redemption. (2) When disqualifying a local agency under the SFMNP, the department will provide the local agency with written notice not less than 30 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 249.16. The notice will ensure that the action is not in conflict with any existing written agreements between the department and the local agency.
NEW RULE IX SENIOR FARMERS' MARKET NUTRITION PROGRAM (SFMNP): APPEALS BY PARTICIPANTS, FARMERS, AND LOCAL AGENCIES (1) A participant who is denied participation or been disqualified from the program by the local agency may request a fair hearing before the department in accordance with [NEW RULE X] and 7 CFR 249.16. (2) Expiration of the participant application or disqualification of the application due to ineligibility as the result of age, income, or insufficient program funds as established by 7 CFR 249.6 is not subject to appeal. (3) A local agency or farmer may request a fair hearing before the department if: (a) they are denied participation; (b) they are disqualified during the current valid written agreement; or (c) their participation is otherwise adversely affected. (4) Expiration of the agreement with a farmer or local agency is not subject to appeal. (5) The issuance of notice of adverse action, the processing of fair hearing requests, and the conduct of such hearings will be in accordance with provisions set forth in [NEW RULE X].
NEW RULE X SENIOR FARMERS' MARKET NUTRITION PROGRAM (SFMNP): FAIR HEARING PROCEDURES (1) A designated local agency, farmer, or participant is entitled to a hearing if they are aggrieved by an adverse department determination which: (a) results in a denial of an application or agreement by the local or state agency; or (b) results in a revocation or correction plan for failure to comply substantially with the requirements of the application or agreement. (2) The hearing will be conducted according to the applicable provisions of ARM 37.5.304, 37.5.305, 37.5.307, 37.5.311, 37.5.313, 37.5.316, 37.5.322, 37.5.325, 37.5.328, 37.5.331, 37.5.334 and 37.5.337.
4. STATEMENT OF REASONABLE NECESSITY
The United States Department of Agriculture (USDA) grants funding to states for the Senior Farmers' Market Nutrition Program (SFMNP) through section 7 CFR 249 of the Federal Code. The SFMNP provides a resource to income-eligible seniors to receive coupons and exchange them for fresh produce during the summer farmers' market season. This ensures that seniors have access to fresh produce for up to $50 per season and provides an opportunity for socialization. These rules establish a more formal guidance and process for the farmers who wish to be involved in the SFMNP and participants to receive its benefits. The USDA sets guidelines for eligibility, review, and an appeal and fair hearing process for the participants, farmers, and local agencies in the event that a denial or violation of federal requirements occurs.
Montana has been involved in the SFMNP since 2006. A 2013 USDA audit determined that the department was out of compliance with the federal appeal and fair-hearing process requirements. Currently no administrative rules exist for SFMNP. These proposed rules are necessary to bring Montana into compliance with federal requirements.
Generally, NEW RULES I through X establish the purpose, definitions, eligibility determination procedures, and appeal and fair hearing processes relating to the department's proposed adverse actions against SFMNP participants, farmers, and local agencies which are defined in NEW RULE II, in compliance with 7 CFR 249.
NEW RULES I and II
These proposed rules are necessary to provide a clear procedural framework under which the department administers the SFMNP under section 4402 of the Farm Security and Rural Investment Act of 2002, 7 U.S.C. 3007. They also define the terms specific to SFMNP, its application process, and training components as established by 7 CFR 249 and the SFMNP state plan.
NEW RULES III, IV, and V
These proposed rules are necessary because they provide guidelines for application and participation for those who wish to participate in SFMNP. These criteria are established by 7 CFR 249.
NEW RULES VI, VII, and VIII
These proposed rules are necessary as they provide guidance to the department for conducting compliance reviews of the farmers that accept coupons for redemption in accordance with 7 CFR 249 and local agencies that administer SFMNP. These rules also establish the criteria for levels of violations found while conducting these reviews and a procedure and notification of adverse actions that could include suspension and disqualification of a farmer from continued participation.
NEW RULE IX
This proposed rule establishes the criteria and process in which a participant, local agency, and farmer can appeal a decision if their application or agreement for SFMNP has been denied or suspended as a result of a violation. This rule also establishes the circumstances in which an appeal cannot be filed as set by 7 CFR 249. This is necessary to be in compliance with federal regulations.
NEW RULE X
This proposed rule establishes the criteria for a fair hearing for both the farmer and a participant which coincides with the fair hearing processes established by ARM 37.5.304 through 37.5.337. A fair hearing process is required by 7 CFR 249. These rules are necessary to be in compliance with federal regulations.
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 dphhslegal@mt.gov, and must be received no later than 5:00 p.m., April 7, 2017.
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 2-4-111, MCA, the department has determined that the adoption of the above-referenced rules will not significantly and directly impact small businesses.
11. Section 53-6-196, MCA, requires that the department, when adopting by rule proposed changes in the delivery of services funded with Medicaid monies, make a determination of whether the principal reasons and rationale for the rule can be assessed by performance-based measures and, if the requirement is applicable, the method of such measurement. The statute provides that the requirement is not applicable if the rule is for the implementation of rate increases or of federal law.
The department has determined that the proposed program changes presented in this notice are not appropriate for performance-based measurement and therefore are not subject to the performance-based measures requirement of 53-6-196, MCA.
/s/ Caroline Warne /s/ Sheila Hogan Caroline Warne, Attorney Sheila Hogan, Director Rule Reviewer Public Health and Human Services
Certified to the Secretary of State February 27, 2017.
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A directory of state agencies is available online at http://www.mt.gov/govt/agencylisting.asp.
For questions about the organization of the ARM or this web site, contact sosarm@mt.gov.
