Administrative Code

Virginia Administrative Code
6/16/2024

Part II. Participant Requirements

12VAC5-195-70. Eligibility requirements.

A. Adjunctive financial eligibility requirements. Adjunctive or automatic financial eligibility is determined pursuant to 7 CFR 246.7. Documentation is required as proof of participation in programs that qualify an applicant for adjunctive financial eligibility. The state agency also allows Family Access to Medical Insurance Security Plan (FAMIS) and a $2.00 co-pay level to be used in determining adjunctive financial eligibility.

B. Local agencies shall serve institutionalized applicants if they meet all eligibility requirements.

C. For determining income eligibility, local agency personnel shall use the applicant's current or annualized income, whichever is the best indication of circumstances.

D. In determining income eligibility, the state agency shall utilize all income exclusions listed in 7 CFR 246.7.

E. Applicants who are not adjunctively financially eligible shall have financial eligibility determined using income guidelines equaling the income guidelines established under § 9 of the National School Lunch Act for reduced price school meals per 7 CFR 246.7.

F. An applicant claiming multiple fetuses shall have the stated number used at the time of certification, but shall be required to provide written verification by a physician or nurse practitioner working under the supervision of a physician within 60 days of certification.

Statutory Authority

§ 32.1-12 of the Code of Virginia; 7 CFR Part 246.

Historical Notes

Derived from Virginia Register Volume 24, Issue 19, eff. May 26, 2008; amended, Virginia Register Volume 25, Issue 22, eff. July 6, 2009; Volume 29, Issue 12, eff. March 13, 2013; Volume 35, Issue 22, eff. July 24, 2019.

12VAC5-195-80. Proof of identification.

Applicants shall present proof of identification to obtain all WIC services and benefits. This includes certification and subsequent certification visits, food instrument issuance, special formula issuance, nutrition education, and verification of certification transfers. The local agency shall only accept the following as proof of identification:

1. Valid Medicaid card or letter;

2. Social Security card;

3. Driver's license;

4. Birth certificate;

5. Marriage license;

6. Crib card for newborns;

7. Hospital card for newborns;

8. Military identification card or discharge papers (DD214);

9. Clinic or hospital record or ID;

10. TANF or welfare photo ID;

11. Refugee settlement papers;

12. Immigration or Naturalization Record (e.g., green card);

13. Passport or visa; and

14. School records (ID or report card, enrollment or health record).

Statutory Authority

§ 32.1-12 of the Code of Virginia; 7 CFR Part 246.

Historical Notes

Derived from Virginia Register Volume 24, Issue 19, eff. May 26, 2008; amended, Virginia Register Volume 35, Issue 22, eff. July 24, 2019.

12VAC5-195-90. Proof of residency.

A. Applicants shall present proof of residency at initial certification and subsequent certification visits. Proof of residency shall be current and include the applicant's name. The local agency shall accept the following as proof of residency:

1. Utility bills;

2. Other business mail with a Virginia address;

3. Deed, mortgage, monthly mortgage statement, or residential rental or lease agreement;

4. Valid Virginia driver's license;

5. Valid Medicaid Card or positive, official Medicaid Verification; or

6. TANF or welfare photo ID.

B. Proof of residency for military personnel shall be current and include the applicant's name. The local agency shall accept the following as proof of residency for military personnel:

1. A letter from the company commander on official letterhead;

2. A copy of official Department of Defense orders with Virginia installation assignment; or

3. A leave and earning statement (LES) listing Virginia as the service member's home of record.

Statutory Authority

§ 32.1-12 of the Code of Virginia; 7 CFR Part 246.

Historical Notes

Derived from Virginia Register Volume 24, Issue 19, eff. May 26, 2008; amended, Virginia Register Volume 35, Issue 22, eff. July 24, 2019.

12VAC5-195-100. Proxy.

A. A participant, parent or legal guardian may have the privilege, but not the right, to designate a maximum of two proxies. A proxy may accept and redeem food instruments. The proxy must attend nutrition education to obtain food instruments. The participant and proxy are not required to be present together when the participant designates the proxy. The parent is encouraged to be the primary recipient of all WIC instruments.

B. Local agency personnel shall only discuss the option of designating a proxy if the participant, parent or legal guardian indicates one of the following situations:

1. The participant, parent or legal guardian expresses difficulty with attending the local agency for nutrition education WIC instruments;

2. The local agency determines difficulty with the participant, parent or legal guardian attending the local agency through objective methods such as the no show reports, missed appointments, or frequently rescheduled appointments; or

3. The local agency determines difficulty with the participant, parent or legal guardian attending the local agency during established alternative hours.

Statutory Authority

§ 32.1-12 of the Code of Virginia; 7 CFR Part 246.

Historical Notes

Derived from Virginia Register Volume 24, Issue 19, eff. May 26, 2008.

12VAC5-195-110. Caretaker.

A. A parent or legal guardian may have the privilege, but not the right, to designate one caretaker per family ID number to certify an infant or child who may obtain and redeem food instruments and attend nutrition education. The caretaker assumes all of the rights and responsibilities of the parent or legal guardian who designates him. A caretaker shall be designated only when the local agency cannot accommodate the needs of the parent to attend the local agency to obtain WIC benefits. In the absence of a parent or legal guardian, a caretaker shall provide reasonable documentation of his status as a primary caretaker. Reasons supporting the designation of a caretaker shall be documented and become part of the participant's record. The authority to implement the caretaker policy will be granted individually to local agencies by the state WIC director. The parent is always encouraged to be the primary recipient of all WIC benefits.

B. A caretaker may be designated in two situations:

1. A parent or legal guardian's declaration of hardship; or

2. The caretaker providing reasonable documentation of his role in the absence of a parent or legal guardian.

C. Local agency personnel shall discuss the option of designating a caretaker if the participant, parent, or legal guardian declares hardship that prevents him from coming to the local agency during established regular and alternative hours due to:

1. Conflict of schedules due to work, school, or some other valid reason;

2. Lack of transportation;

3. An infant or child residing with a family member or caretaker; or

4. The parent or legal guardian being sanctioned from the program.

D. The caretaker shall provide reasonable documentation to substantiate his relationship with the infant or child and his role as primary caretaker. Reasonable documentation may include:

1. Signed caretaker designation form, WIC-311, indicating the designation of caretaker that may be obtained prior to the first local agency visit;

2. Signed and witnessed letter from the legal guardian or parent designating a caretaker and reason for the legal guardian's or parent's inability to certify an infant or child, obtain and redeem food instruments, and attend nutrition education; or

3. Documentation of the parent or legal guardian's enrollment, residence, or confinement in a hospital treatment program, shelter, penal institution, or other institution.

Statutory Authority

§ 32.1-12 of the Code of Virginia; 7 CFR Part 246.

Historical Notes

Derived from Virginia Register Volume 24, Issue 19, eff. May 26, 2008; amended, Virginia Register Volume 29, Issue 12, eff. March 13, 2013; Volume 35, Issue 22, eff. July 24, 2019.

12VAC5-195-120. Certification.

A. The certification process begins when an applicant contacts the local agency to make an oral or written request for WIC benefits.

B. A local agency may choose to serve participants who live outside of their local agency geographic area, but within the state, in cases of hardship.

C. Breastfeeding women shall be certified up to the last day of the month in which her infant turns one year old or until the woman ceases breastfeeding, whichever occurs first.

D. Infants shall be certified up to their first birthday.

Statutory Authority

§ 32.1-12 of the Code of Virginia; 7 CFR Part 246.

Historical Notes

Derived from Virginia Register Volume 24, Issue 19, eff. May 26, 2008.

12VAC5-195-130. Nutritional risk priority system.

The state agency places pregnant, breastfeeding, or postpartum women, infants and children who are at nutritional risk solely because of homelessness and migrancy in Priority VII, per 7 CFR 246.7. The state agency does not expand or adjust any other priority level listed in 7 CFR 246.7.

Statutory Authority

§ 32.1-12 of the Code of Virginia; 7 CFR Part 246.

Historical Notes

Derived from Virginia Register Volume 24, Issue 19, eff. May 26, 2008.

12VAC5-195-140. Food instruments.

A. Food instrument issuance. All food instruments shall be issued through the automated system only after eligibility has been documented and when the participant, parent or legal guardian, caretaker, or proxy is physically present at the local agency to have their food benefits loaded, except when there is a system outage or system failure. Failure by the participant, parent, legal guardian, caretaker, or proxy to attend the initial nutrition education appointment may result in reduced WIC benefits for that month.

B. Lost food instruments. Lost food instruments shall only be replaced for one of the following situations:

1. A participant leaving home because of domestic violence;

2. A change in full legal custody, including when infants or children are removed from home and placed in foster care or parental custody is changed; or

3. An event out of the control of participant, such as a fire or natural disaster that is publicly documented.

C. Stolen food instruments. Food instruments reported as stolen shall only be replaced when a police report is provided that states that the valid, not redeemed, WIC food instruments were stolen. Stolen food instruments shall not be replaced without a police report, unless costs are associated with the police report and a waiver is granted by the state agency.

Statutory Authority

§ 32.1-12 of the Code of Virginia; 7 CFR Part 246.

Historical Notes

Derived from Virginia Register Volume 24, Issue 19, eff. May 26, 2008; amended, Virginia Register Volume 25, Issue 22, eff. July 6, 2009; Volume 29, Issue 12, eff. March 13, 2013; Volume 35, Issue 22, eff. July 24, 2019.

12VAC5-195-150. Alternative office hours.

Alternative office hours shall be offered outside of the regular operating hours of Monday through Friday, between 8 a.m. and 4:30 p.m. to address barriers in accessing WIC services for current and potential applicants and participants. The local agency shall offer a minimum of 16 alternative office hours per month and provide documentation to the state agency that the alternative hours accommodate the needs of the current client caseload.

Statutory Authority

§ 32.1-12 of the Code of Virginia; 7 CFR Part 246.

Historical Notes

Derived from Virginia Register Volume 24, Issue 19, eff. May 26, 2008; amended, Virginia Register Volume 29, Issue 12, eff. March 13, 2013.

12VAC5-195-160. Waiting lists.

The state agency shall provide local agencies with approval before waiting lists are implemented.

Statutory Authority

§ 32.1-12 of the Code of Virginia; 7 CFR Part 246.

Historical Notes

Derived from Virginia Register Volume 24, Issue 19, eff. May 26, 2008.

12VAC5-195-170. Termination.

Participants who fail to obtain food instruments for 90 days after the last date to spend during a certification period shall be automatically terminated from the WIC Program.

Statutory Authority

§ 32.1-12 of the Code of Virginia; 7 CFR Part 246.

Historical Notes

Derived from Virginia Register Volume 24, Issue 19, eff. May 26, 2008.

12VAC5-195-180. Fair hearing.

A. The Virginia WIC Program is a federally administered program. The following fair hearing procedures are a federal process with which the state agency must comply. Pursuant to 7 CFR 246.9, the state agency shall provide a hearing procedure through which any individual may appeal a state or local agency action that results in a claim against the individual for repayment of the cash value of improperly issued benefits or results in the individual's denial of participation or disqualification from the program.

B. The local agency shall inform each individual in writing of the right to a fair hearing at the time of a claim against an individual for improperly issued benefits or at the time of participation denial or of disqualification from the program.

C. A fair hearing shall be requested within 60 days of the written notification date of program denial, termination of benefits, or claim against an individual for improperly issued benefits. The request shall be made in any clear expression to present the case to a higher authority.

D. Participants who appeal the termination of benefits within 15 days must continue to receive WIC benefits until the hearing officer reaches a decision, the participant becomes categorically ineligible, or the certification period expires, whichever comes first.

E. Applicants who are denied WIC benefits at the initial certification or because of the expiration of their certification may appeal the denial but shall not receive benefits while awaiting the hearing decision.

F. A fair hearing will be held within 21 days of the request, unless delayed by mutual agreement of the parties.

G. The state agency shall provide 10 days advanced written notice of the date, time, and place of the hearing, which shall be held in the local agency at which the participant or applicant receives WIC Program services.

H. Pursuant to 7 CFR 246.9, the state or local agency shall provide the participant, applicant, or representative an opportunity to:

1. Examine, prior to and during the hearing, the documents and records presented to support the decision under appeal, which will be sent to the applicant or participant 10 days prior to the fair hearing;

2. Be assisted or represented by an attorney or other persons;

3. Bring witnesses;

4. Advance arguments without undue interference;

5. Question or refute any testimony or evidence, including an opportunity to confront and cross examine adverse witnesses; and

6. Submit evidence to establish all pertinent facts and circumstances in the case.

I. The hearing officer shall hear evidence and testimony and reach a decision. The state WIC director shall provide written notification of the hearing officer's decision to the applicant or participant and the district health director within 45 days of the date of the fair hearing request. Participants whose benefits were previously denied or discontinued may receive or reapply for WIC benefits upon receipt of a favorable decision by the hearing officer.

J. The local agency and state agency shall keep the results of the hearing on file for three years.

Statutory Authority

§ 32.1-12 of the Code of Virginia; 7 CFR Part 246.

Historical Notes

Derived from Virginia Register Volume 24, Issue 19, eff. May 26, 2008; amended, Virginia Register Volume 25, Issue 22, eff. July 6, 2009; Volume 35, Issue 22, eff. July 24, 2019.

12VAC5-195-190. Fair hearing request denial or dismissal.

Per 7 CFR 246.9, the state and local agencies shall not deny or dismiss a request for a hearing unless:

1. The request is not received within the time limit set by the state agency;

2. The request is withdrawn in writing by the appellant or a representative of the appellant;

3. The appellant or representative fails, without good cause, to appear at the scheduled hearing; or

4. The appellant has been denied participation by a previous hearing and cannot provide evidence that circumstances relevant to program eligibility have changed in such a way as to justify a hearing.

Statutory Authority

§ 32.1-12 of the Code of Virginia; 7 CFR Part 246.

Historical Notes

Derived from Virginia Register Volume 24, Issue 19, eff. May 26, 2008; amended, Virginia Register Volume 25, Issue 22, eff. July 6, 2009.

12VAC5-195-200. Program abuse and sanctions.

A. The state agency determines program abuse and sanctions that may be issued to applicants and participants. When more than one abuse is involved at a time, the sanction shall be based on the more serious abuse.

B. If an abuse occurs more than 12 months after the last abuse, the local agency shall process the abuse as a first offense.

C. When more than three abuses in a 12-month period occur, the local agency shall issue a three-month temporary disqualification.

D. Program abuses and assigned sanctions are as follows:

Abuse

Number of Offenses

Sanction

Class I

Any deliberate misrepresentation of income, name, residence, family size, medical data, or date of birth to obtain WIC benefits

All

Three-month disqualification

Dual participation – redeeming food instruments from two programs or agencies in same month

All

One-year disqualification

Assessed claim for $100 or more

All

One-year disqualification

Assessed second or subsequent claim for any amount

2nd or subsequent

One-year disqualification

Attempting to steal or actually stealing food instruments from the local agency or another participant

All

Three-month disqualification

Selling, exchanging or giving away food instruments, food, or formula

All

Three-month disqualification

Redeeming WIC food instruments reported as lost or stolen

All

Three-month disqualification

Attempting to redeem or redeeming WIC food instruments for nonfood items (i.e., diapers, wine, cigarettes)

All

Three-month disqualification

Physically abusing the WIC or retailer staff (An incidence of physical abuse of WIC or retailer staff or properties should be reported to the police)

All

Three-month disqualification

Accepting cash or credit from a retailer in connection with a WIC transaction

1st

One-month disqualification

2nd

Two-month disqualification

3rd

Three-month disqualification

Class II

Creating a public nuisance at the local agency or the retailer (i.e., verbally abusing, harassing, or threatening WIC or retailer staff, destroying retailer merchandise, or disrupting normal local agency or retailer activities)

1st

Warning letter

2nd

Two-month disqualification

3rd

Three-month disqualification

Attempting to redeem or redeeming WIC food instruments for unauthorized food, formula, or food amounts

1st

Warning letter

2nd

Two-month disqualification

3rd

Three-month disqualification

Allowing unauthorized persons to use the WIC ID Folder to pick-up or redeem WIC food instruments

1st

Warning letter

2nd

Two-month disqualification

3rd

Three-month disqualification

Redeeming WIC food instruments before or after valid spend dates

1st

Warning letter

2nd

One-month disqualification

3rd

Two-month disqualification

Attempting to redeem or redeeming food instruments at unauthorized retailers

1st

Warning letter

2nd

One-month disqualification

3rd

Two-month disqualification

Statutory Authority

§ 32.1-12 of the Code of Virginia; 7 CFR Part 246.

Historical Notes

Derived from Virginia Register Volume 24, Issue 19, eff. May 26, 2008; amended, Virginia Register Volume 29, Issue 12, eff. March 13, 2013; Volume 35, Issue 22, eff. July 24, 2019.

12VAC5-195-210. Collection of improperly issued instruments or claims against participants.

The state agency shall establish a claim against a participant for the full value of benefits improperly obtained or disposed of as a result of a participant violation. Participant violations include:

1. Inaccurate certification information;

2. Dual participation violations;

3. Violation of the WIC guidelines or rules by the proxy or caretaker; or

4. Redemption of future food instruments after disqualification.

Statutory Authority

§ 32.1-12 of the Code of Virginia; 7 CFR Part 246.

Historical Notes

Derived from Virginia Register Volume 24, Issue 19, eff. May 26, 2008; amended, Virginia Register Volume 29, Issue 12, eff. March 13, 2013; Volume 35, Issue 22, eff. July 24, 2019.

12VAC5-195-220. Interruption of benefits.

A. The state agency may discontinue benefits to participants due to funding shortages.

B. Local agencies shall only implement an interruption of benefits as specified by written direction from the state agency.

C. The state agency shall exercise its federal authority to limit participation to high priorities in the case of funding shortages.

Statutory Authority

§ 32.1-12 of the Code of Virginia; 7 CFR Part 246.

Historical Notes

Derived from Virginia Register Volume 24, Issue 19, eff. May 26, 2008.

12VAC5-195-230. Conflict of interest.

A. Local agency personnel involved in the WIC eligibility, certification, and food benefits process shall not:

1. Act as a proxy for a participant;

2. Have a direct financial interest in an authorized WIC retailer; or

3. Complete an onsite stocking visit of an authorized retailer at which they or a relative is employed.

B. Individuals involved in administering the WIC Program shall not certify or issue food instruments to themselves or relatives.

C. Additional conflict of interest regulation may be found in 12VAC5-195-460.

D. This section is not meant to replace or abrogate the Virginia State and Local Government Conflict of Interests Act, Chapter 31 (§ 2.2-3100 et seq.) of Title 2.2 of the Code of Virginia.

Statutory Authority

§ 32.1-12 of the Code of Virginia; 7 CFR Part 246.

Historical Notes

Derived from Virginia Register Volume 24, Issue 19, eff. May 26, 2008; amended, Virginia Register Volume 29, Issue 12, eff. March 13, 2013; Volume 35, Issue 22, eff. July 24, 2019.

12VAC5-195-240. Emergency situations.

Local agencies shall follow emergency procedures in the event of an emergency situation. Procedures to continue WIC benefits shall be incorporated by the local agency into the district office's emergency and business recovery plan.

Statutory Authority

§ 32.1-12 of the Code of Virginia; 7 CFR Part 246.

Historical Notes

Derived from Virginia Register Volume 24, Issue 19, eff. May 26, 2008; amended, Virginia Register Volume 35, Issue 22, eff. July 24, 2019.

12VAC5-195-250. (Reserved).

Historical Notes

Derived from Virginia Register Volume 24, Issue 19, eff. May 26, 2008.

12VAC5-195-260. (Reserved).

Historical Notes

Derived from Virginia Register Volume 24, Issue 19, eff. May 26, 2008.

12VAC5-195-270. (Reserved).

Historical Notes

Derived from Virginia Register Volume 24, Issue 19, eff. May 26, 2008.

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