Part 1.
TEXAS DEPARTMENT OF HEALTH
Chapter 1.
TEXAS BOARD OF HEALTH
Subchapter U. ASSIGNMENT AND USE OF AGENCY VEHICLE IN THE STATE VEHICLE FLEET MANAGEMENT PLAN
25 TAC §1.401
The Texas Department of Health (department) adopts new §1.401
concerning the assignment and use of agency vehicles in the State Vehicle
Fleet Management Plan with changes to the proposed text as published in the
April 20, 2001, issue of the
Texas Register
(26 TexReg 2928).
The rule adopts by reference Texas Government Code, Chapter 2171, Travel
and Vehicle Fleet Services, §2171.1045 concerning the assignment and
use of agency vehicles in order to comply with §2171.1045 which requires
each agency to adopt rules consistent with the management plan adopted under
Texas Government Code, §2171.104 relating to the assignment and use of
agency vehicles. The rule requires that each agency vehicle, with the exception
of a vehicle assigned to a field employee, be assigned to the agency motor
pool and be available for checkout. Furthermore an agency may assign a vehicle
to an individual administrative or executive employee on a regular or everyday
basis only if the agency makes a written documented finding that the assignment
is critical to the needs and mission of the agency.
No comments were received on the proposal during the comment period.
The new section is adopted under Health and Safety Code §12.001,
which provides the board with the authority to adopt rules for the performance
of every duty imposed by law on the board, the department, and the commissioner
of health; and the Texas Government Code, Chapter 2171, which mandates the
adoption of this rule.
§1.401.The Assignment and Use of Agency Vehicles in the State Vehicle Fleet Management Plan.
The Texas Department of Health (department) adopts by reference the
state statute, Texas Government Code, §2171.1045, concerning the assignment
and use of agency vehicles.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on July 16, 2001.
TRD-200104059
Susan Steeg
General Counsel
Texas Department of Health
Effective date: August 5, 2001
Proposal publication date: April 20, 2001
For further information, please call: (512) 458-7236
The Texas Department of Health (department) adopts the repeal of existing §§31.1-31.3
and new §§31.1, 31.11-31.12, and 31.21-31.37, concerning the Register
of Mother-Friendly Businesses; the Farmers' Market Nutrition Program; and
the Special Supplemental Nutrition Program for Women, Infants, and Children
(WIC). Sections 31.1, 31.21, 31.22, 31.23, 31.24, 31.25, 31.31, 31.32, 31.33,
31.34, 31.35, and 31.37 are adopted with changes to the proposed text as published
in the February 2, 2001, issue of the
Texas Register
(26 TexReg 1068). Sections 31.11, 31.12, 31.26, 31.27, 31.28, 31.29,
31.30, and 31.36 are adopted without changes, and therefore the sections will
not be republished. The repeals are adopted without change, and therefore
the repeals will not be republished.
The United States Department of Agriculture (USDA) provides federal grant
funds to the department to administer the WIC and Farmers' Market Nutrition
Programs, provided the department does so in accordance with federal regulations.
The WIC Program is 100% federally funded while the Farmers' Market Nutrition
Program is 70% federally funded according to federal and state enabling legislation.
The repeal of §§31.1-31.3 deletes rules concerning the Register
of Mother-Friendly Businesses, the Farmers' Market Nutrition Program, and
the adoption by reference of state plans, WIC federal regulations, and the
WIC Policy and Procedure Manual. The new sections reestablish the Register
of Mother-Friendly Businesses and the Farmers' Market Nutrition Program with
no substantive changes. The new sections also reestablish without substantive
change 37 WIC policies, currently adopted by reference as part of the WIC
Policy and Procedure Manual, that address client, local agency, and vendor
eligibility and rights of participation in the program and the authorization
of WIC allowable foods. The remaining 183 WIC policies currently adopted by
reference as part of the WIC Policy and Procedure Manual will be deleted.
The 183 policies will continue to be enforced unchanged through contracts
between the department and local agencies and WIC food vendors. Deletion of
policies affecting WIC local agencies and contracted WIC food vendors by repeal
of §31.1 will eliminate duplicate references to the policies in both
department rules and local agencies' contracts. Since the relationship of
WIC local agencies and participating food vendors to the department is contractual,
the repeal will clarify that local agencies and participating food vendors
are subject to sanctions solely as a result of noncompliance with their contracts.
Neither federal law nor regulations require the department to adopt WIC policies
or procedures by rule after approval by USDA.
The policies deleted by the repeal of §31.1 that will not be adopted
in the new sections include the following: Explanation of the Federal Definition
of "Health Services," AAP:01.4; Local Agency Financial Management Systems,
AC:01.0; Reimbursement of Allowable WIC Expenses, AC:01.1; Plan to Allocate
Direct Cost, AC:02.0; Allowable Costs - Personnel Compensation, AC:03.0; Allowable
Costs - Personnel Benefits, AC:03.1; Allowable Costs - In-State Travel, AC:03.2;
Allowable Costs - Out-of-State Travel, AC:03.3; Allowable Costs - Agency Car,
AC: 03.5; Property Management, AC:03.6; Allowable Costs - Equipment, AC:03.7;
Allowable Costs - Depreciation of Equipment, AC:03.7.1; Allowable Costs -
Outreach, AC:03.9; Allowable Costs - Communication & Utilities, AC:03.10;
Allowable Costs - Data Processing, AC:03.11; Allowable Costs - Reproduction
Expense, AC: 03.12; Allowable Costs - Printing Expense, AC:03.12.1; Allowable
Costs - Space Rental, AC:03.13; Allowable Costs - Facility Depreciation, AC:03.13.1;
Allowable Costs - Use Allowance, AC:03.13.2; Allowable Costs - Supplies, AC:03.14;
Allowable Costs - Postage and Shipping, AC:03.15; Allowable Costs - Non-Professional
Contract Services, AC:03.16; Allowable Costs - Professional Contract Services,
AC:03.16.1; Allowable Costs - Peer Counselors, AC:03.16.2; Allowable Costs
- Facility Renovation, AC:03.17; Allowable Costs - Expendable Medical Supplies,
AC:03.18; Allowable Costs - Indirect Costs, AC:03.19; Allowable Costs - Food
Purchases, AC:03.20; Allowable Costs - Insurance Expense, AC:03.21; Allowable
Costs - Outreach Incentive Items, AC:03.22; Allowable Costs - Laboratory Coats,
AC:03.23; Allowable Costs - Employee Uniforms, AC:03.24; Unallowable Costs,
AC:04.0; Monthly Reimbursement Maximum, AC:05.0; Monthly Reimbursement Maximum
- Start Up Costs, AC:05.1; Cash Advance Payments, AC:05.2; Surplus Funds,
AC:06.0; Financial Reporting, AC:07.0; WISE Cost Report, WIC-227 A, AC:07.7;
Program Income, AC:08.0; Program Income - Participant Fees, AC:08.1; Close
Out Reports, AC:09.0; Expenditure Records, AC:10.0, Nutrition Education Expenditures,
AC:10.1; Breastfeeding Promotion Expenditures, AC:10.2; Lost and Stolen Equipment,
AC:11.0; Sale or Disposition of Property, AC:12.0; Procurement Procedure,
AC:13.0; Audit of Local Agencies, AUD:01.0; Automation Change Management,
AUT:01.0; Computer Environment and Platform Modifications, AUT:02.0; Backups,
AUT:03.0; Telephone With Data Communications Capabilities, AUT:04.0; Repair
of Computer Equipment, AUT:05.0; Surge Protector Requirement, AUT:06.0; Requests
for New or Additional Computers and/or Peripherals, AUT:07.0; Breastfeeding
Promotion Standards, BF:01.0; Local Breastfeeding Coordinator, BF:02.0, Breastfeeding
Peer Counselor, BF:03.0; Breastfeeding Training, BF:04.0; Participant's Rights
and Obligations, CR:01.0; Providing Oral and Written Program Information to
Non-English or Limited English Speaking Persons, CR:02.1; Nondiscrimination
Statement, CR:02.2; Civil Rights Compliance Reviews, CR:04.0; Civil Rights
Complaints, CR:04.1; Processing Civil Rights Violations, CR:05.0, Local Agency
Processing of Participant Civil Rights Complaints, CR:06.0; Provision of Service
to the Handicapped, CR:07.0; Provision of Services to Families with Special
Health Care Needs, CR:07.1; Civil Rights Training, CR:08.0; Collection of
Racial/Ethnic Data, CR:09.0; Proof of Pregnancy as a Certification Requirement,
CS:01.1.1; Midpoint Screening, CS:01.2.1; Time Frames for Processing Applicants,
CS:01.3; Appointment System, CS:01.3.1; Inactivation for Failure to Pick Up
Food Vouchers, CS:01.5; Caseload Management, CS:01.7; Waiting List for WIC,
CS:01.8; Waiting List Recall, CS:01.8.1; Preventing and Detecting Dual Participation,
CS:02.2; Collection and Use of Social Security Numbers, CS:03.6; Completion
of the Family Certification Form/Release List, CS:03.7; Participant Priority
of Risk, CS:04.0; Documentation of a Complete Nutritional Assessment, CS:04.1;
Criteria for Identifying Nutritional Risk Conditions, CS:04.2; Infant Born
to High Risk or WIC Mother, CS:04.3; Procedures for Weighing and Measuring,
CS:04.4; Measuring Equipment, CS:04.4.1; Weighing Equipment, CS:04.4.2; Determination
of Hematocrit or Hemoglobin, CS:04.5; Equipment for Determination of Hemoglobin
and Hematocrit, CS:04.5.2; Calibration of Hematocrit and Hemoglobin Equipment,
CS:04.5.3; Assessment of Dietary Pattern, CS:04.6; Assessment of Medical History,
CS:04.7; Use of Medical Data Taken Prior to the Time Eligibility Is Determined,
CS:04.9; Competent Professional Authority, CS:05.1; Competent Professional
Authority, CS:05.1.a; Issuance of WIC Family Identification Cards, CS:06.0;
Issuance of Duplicate Family Identification Cards, CS:06.1; Issuance of Verification
of Certification, CS:06.2; Enrollment of Transferring Participants, CS:07.0;
Certification Data Entry Forms, CS:09.1; Completing the Supplemental Information
Form, CS:09.2; Completion and Issuance of Food Vouchers, FD:01.0; Frequency
of Issuance of WIC Food Vouchers, FD:01.2; Signing of Food Voucher by a Proxy,
FD:02.0; Disposition of Voided and Destroyed Food Vouchers, FD:03.0; Replacement
of Voided Food Vouchers, FD:03.1; Documenting Missing/Stolen Food Vouchers,
FD:04.0; Action To Be Taken When Issued Vouchers Are Reported Lost/Stolen
By a Participant, FD:05.0; Liability of Local Agency for Food Voucher Inventory
Shortages, FD:06.0; Mailing Food Vouchers, FD:07.0; WIC Food Voucher Supplies,
FD:08.0; Transfer of Texas WIN Inventory, FD:09.0; Food Packages, FD:22.0;
Tailoring Food Packages to Meet Individual Needs, FD:23.0; Program Benefits
for Homeless Individuals and Those Lacking Refrigeration, FD:23.1; Issuance
of Contract Formula, FD:24.0; Use of Contract Formula Samples, FD:24.0.1;
Issuance of Iron-Fortified Ready-To-Use Formula, FD:24.1; Issuance of Non-Contract
Formulas and Medical Nutritional Products, FD:24.2; Issuance of Formula to
Children and Women with Special Dietary Needs, FD:24.4; Intolerance to All
Authorized Formulas, FD:24.6; Issuance of Dry Beans/Peanut Butter, FD:25.0;
Reporting of Participant Abuse, FD:29.0.1; Exchange of Formula Between Issuance
Dates, FD:32.0; Exchange of Out-of-State Food Instruments, FD:33.0; Conflict
of Interest - Local Agency Officials, FD:36.0; Public Information - General,
GA:03.0; Public Information - Policy and Procedure Manual, GA:03.1; Confidentiality
of Participant Information, GA:03.2; Confidentiality, GA:04.0; Claims Against
Local Agencies, GA:06.0; Disposal of Program Records, GA:07.0; Contracts and
Agreements with Local Agencies, GA:08.0; Local Agencies Agreement for the
Provision of Health Services, GA:08.1; Local Agency Outreach, GA:09.0; Coordination
of Program Operations, GA:09.2; Provision of Information to WIC Applicants,
GA:09.2.1; Provision of Food Stamp, AFDC, Medicaid, EPSDT, and Child Support
Enforcement Information to WIC Applicants, GA:09.2.2; Local Agency Coordination
with Hospitals, GA:09.2.3; Eligibility of Local WIC Employees for WIC Services,
GA:10.0; Availability of Health Services to WIC Participants, GA:11.0; Agreements
and/or Letters of Endorsement from County Agencies, GA:12.0; Use of State
Appropriated Funds, GA:15.0; Access to Appointments, GA:16.0; Follow-Up of
Pregnant Applicants, GA:16.1; Designation of a Local Agency WIC Director,
GA:17.0; Employee Immunization Requirements, GA:18.0; Compliance with the
Clinical Laboratory Improvement Amendment of 1988 (CLIA), GA:19.0; No Smoking
in Local Agencies, GA:20.0; Compliance with the National Voter Registration
Act of 1993, GA:21.0; Operational Procedures, IM:02.0; Standing Delegation
Orders, IM:02.1; Monitoring Storage of Vaccines, IM:05.0, Quality Assurance,
IM:06.5; Vaccine Distribution and Accountability, IM:07.1; Vaccine Adverse
Event Reporting System, IM:07.2; Immunization Records, IM:09.0; Local Immunization
Plan, IM:10.0; Local Agency Self-Audit, MON:01.0; Review of Vendors by Local
Agencies, MON:02.0; State Agency Monitoring of Clinical Operations and Fiscal/Food
Delivery Systems, MON:03.0; Local Nutrition Education Coordinator, NE:01.0;
Nutrition Education Plan, NE:01.1; Mailing Nutrition Education Materials to
Participants, NE:01.7; Definition of Nutrition Education Contact, NE:02.0;
Standards for Nutrition Education Contacts, NE:02.1; Standards for Group Classes,
NE:02.2, Standards for Individual Counseling, NE:02.3; Nutrition Education
Lessons, NE:03.0; Documentation of Nutrition Education Attendance or Nonattendance,
NE:04.0; Nutrition Education for Advance Issuance, NE:04.2, Categorical Classes,
NE:04.3; Nutrition Education Audiovisuals, NE:05.0; Distributed or Loaned
Nutrition Education Materials, NE:05.1; Purchase of Foods for Demonstration
in Nutrition Education, NE:06.0; Local Outreach Coordinator, OR:01.0; In-Service
Orientation to New Local Agencies, TR:01.0; Orientation and Training of Local
Agency Directors, TR:01.1; Local Training Coordinator, TR:02.0; and Required
Local Agency Clinic and Staff Training, TR:03.0.
The department is making the following minor changes to correct spelling,
typographical, and grammatical errors and to clarify the intent and improve
the accuracy of the sections.
Change: Concerning §31.1, the department has reassigned administrative
responsibility for the register of mother-friendly businesses from the Bureau
of Nutrition Services to the Bureau of Women's Health.
Change: Concerning §§31.1, 31.21, 31.22, 31.23, and 31.25, the
spelling of "breast-fed" has been changed to "breastfed", and the spelling
of "breast-feeding" has been changed to "breastfeeding" to be consistent with
the spellings used in federal WIC regulations and policy statements.
Change: Concerning new §31.21(26), a definition of "minor" has been
added because the term has been included in §31.24(a) and §31.24(c)
to clarify provisions concerning access to immunizations by siblings of WIC
applicants and participants. Definitions following new §31.21(26) have
been renumbered.
Change: Concerning new §31.21(31), the definition has been amended
to clarify that "nutritional risk priorities" are determined based on the
participant's eligibility category as well as his or her nutritional risk
conditions.
Change: Concerning new §31.21(46), the word "similar" has been added
to modify the phrase "monthly WIC sales volume" to clarify that vendors are
grouped by a similar volume of WIC dollars redeemed by the vendor, and not
by identical monthly sales volume.
Change: Concerning §§31.22(a)(3), 31.22(a)(4), 31.22(a)(5), and
31.22(a)(6), the first word in each paragraph has been capitalized in compliance
with
Texas Register
style requirements.
Change: Concerning §31.22(a)(3)(D)(iii), a comma has been placed within
the quotations marks around the word "reimbursement" to correct a typographical
error.
Change: Concerning §31.22(a)(3)(D)(vi), the words "Judgment" and "Papago"
have been spelled correctly.
Change: Concerning §31.31(b), transposition of the word "plan" has
been corrected.
Change: Concerning §31.31(b)(3)(A), a typographical error involving
the word "provides" has been corrected.
Change: Concerning §31.31(f), the word "state" has been added to modify
"agency" to clarify that the section refers to the department's WIC Director,
rather than a local agency or USDA WIC Director.
Change: Concerning §31.32(a), the section has been reworded to clarify
its intent.
Change: Concerning §31.32(b)(2), the sentences in the paragraph have
been reordered and the phrase "at least one type of" has been deleted to clarify
that all vendors are not required to stock "sufficient quantities" of all
types of authorized foods.
Change: Concerning new §31.32(b)(2)(C)(i), the reference to "180 ounces
of adult cereal, including at least 36 ounces each of oat, corn, wheat, rice,
and multi-grain cereals" has been changed to conform to current Program practice,
which authorizes "108 ounces of adult cereal, including 36 ounces each of
at least three of the following types of cereal: oat, corn, wheat, rice, and
multi-grain;".
Change: Concerning §31.33(b)(2), the word "many" has been changed
to "may" and the word "valuation" has been changed to "evaluation" to correct
typographical errors.
Change: Concerning §31.34(a)(3), the word "account" has been replaced
with the word "outlet", and the word "average" has been inserted in the phrase
"local agency standard food package costs" to clarify and more accurately
reflect current Program procedure.
Change: Concerning proposed §31.37(e)(2)(B), the subparagraph has
been deleted because it addresses pricing restrictions for cheese purchased
by participants, rather than criteria for authorized foods offered for sale
by vendors, which is the subject matter of the section. Sections 31.37(e)(2)(A)(i)
- 31.37(e)(2)(A)(iii) have been redesignated as §§31.37(e)(2)(B)
- 31.37(e)(2)(D).
The following public comments were received concerning the proposed repeal
and new rules. Following each comment is the department's response and any
resulting changes.
Comment: Concerning new §31.21(46) and new §31.21(47), one commenter
suggested that the definitions of "vendor band" and "vendor competitive pricing"
be amended to describe grouping of vendors in bands according to vendor account
or outlet volume because outlet volume often represents a more equitable comparison
group.
Response: The department agrees and has amended the sections accordingly.
Comment: Concerning §31.22(a)(2)(A)(i), one commenter suggested that
an applicant for WIC services should not be able to document his or her residency
by presenting a driver's license because federal regulations state that acceptable
documentation must include a current address. Since a driver's license may
remain valid for several years, the address shown may not be current.
Response: The department agrees and has amended the section accordingly.
Comment: Concerning §31.32(b)(2), one commenter recommended that the
specific criteria for determining whether a vendor has sufficient quantities
of WIC allowable foods on hand at the time the vendor requests authorization
should be deleted and replaced with authorization for the department to exercise
its discretion.
Response: Denial of an application for authorization as a WIC vendor because
the vendor allegedly did not stock sufficient quantities of WIC allowable
foods is subject to appeal by the vendor, and without objective criteria,
vendor authorization decisions for similar locations may vary. The specific
definitions of "sufficient quantities" for WIC allowable foods included in
the section provide clear, unambiguous information to prospective vendors
concerning the standards to be applied to the application. No change was made
as a result of this comment.
Comment: Concerning §§31.32(e), 31.32(f), 31.35(c)(1), and 31.35(c)(2),
one commenter recommended that, in compliance with 7 CFR §246.12(g)(5)
concerning the sale of a store to circumvent WIC sanctions, if a new owner
acquires a store location or business in the process of being disqualified
or that has already been disqualified, the new owner should not be permitted
to apply for authorization as a WIC vendor at that location until the department
has determined that the sale was a bona fide, arms-length transaction. The
commenter added that the department must make such a determination within
six months from the date of application by the vendor.
Response: The department agrees and has amended the sections accordingly.
Comment: Concerning §31.33(c)(1)(B), one commenter stated that only
vendors who have six-month probationary contracts should be subject to denial
of a subsequent contract based on one notice of violation of noncompetitive
pricing criteria.
Response: The department agrees and has amended the section accordingly.
Comment: Concerning §31.34(a), one commenter suggested the department
add a provision that would allow the department to increase a vendor band
average pricing amount when unusual wholesale price increases for a food occur,
such as the annual increase in infant formula or when large crop failures
occur which might seasonally increase the cost of WIC foods significantly.
Response: The department agrees and has added §31.34(a)(6).
Comment: Concerning §31.34(a)(2), one commenter stated that the department
should be able to group vendors into bands based on outlets, which often is
more equitable.
Response: The department agrees. The department has deleted the second
sentence in the paragraph to permit additional flexibility in assigning vendors
to bands.
Comment: Concerning §31.34(a)(5), one commenter recommended using
a local agency's average standard food package costs during a prior month,
rather than the current month, to assess vendors' competitive pricing. The
commenter added that disclosure by the department of average costs for standard
food packages in each band in each local agency during a particular month
used as the standard would enable vendors to price WIC foods with greater
assurance that they will remain in compliance with the competitive pricing
criteria.
Response: The department agrees and has amended the section accordingly.
Comment: Concerning §31.34(a), one commenter suggested that the section
be amended to allow the department to alter comparison groups in certain limited
circumstances. The commenter provided the following examples: (1) Because
vendors are grouped on the basis of WIC dollar volume redeemed, certain discount
chain store vendors can be grouped with small and medium-size independent
vendors if they have the same WIC dollar volume redeemed. The small and medium-size
vendors are then evaluated for competitive pricing based on the lower prices
of the discount chain stores which are obtained through their large volume
purchasing capability. The commenter stated that this practice is unfair.
(2) In some rural areas, a vendor may be the only vendor in a town, but the
vendor's costs may be higher precisely because of the store's isolated location.
If these isolated vendors are removed from the program for noncompetitive
pricing, WIC clients may be forced to travel farther to shop and their access
to allowable foods may be reduced. The commenter stated that assigning such
vendors to an alternate pricing band may benefit both vendors and WIC clients.
(3) If only one store in a local agency occupies a pricing band by itself,
that store may charge the maximum WIC-allowable price for foods and would
always comply with competitive pricing requirements.
Response: The department agrees and has added §31.34(a)(7).
Comment: Concerning §31.37(e)(4)(A)(ii), one commenter recommended
including mango-blend juices as an authorized food.
Response: The department has deleted the specific categories of juices
currently listed, and has amended the section to permit the WIC program to
consider any juice as an authorized food based on cost-effectiveness; and
compliance with federal nutritional requirements; packaging requirements;
minimum availability requirements; and consumer and cultural acceptability
requirements, including suitability for children.
The commenters were the USDA Food and Nutrition Service, Southwest Regional
Office, Senator Eddie Lucio, Jr., the Gulf Coast Retailers Association, and
one individual. The commenters were not against the rules in their entirety,
but made recommendations for change as discussed in the summary of comments.
25 TAC §§31.1 - 31.3
The repeals are adopted under Health and Safety Code, §12.001,
which provides the Texas Board of Health (board) with the authority to adopt
rules for the performance of every duty imposed by law on the board, the department,
and the commissioner of health; Health and Safety Code, §165.003; the
Texas Omnibus Hunger Act of 1985, 69th Legislature, Chapter 150, Title II,
Human Resources Code, Chapter 33; the Child Nutrition Act of 1966, 42 USC, §1786;
7 CFR Part 246; and 7 CFR Part 248.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on July 16, 2001.
TRD-200104072
Susan Steeg
General Counsel
Texas Department of Health
Effective date: August 5, 2001
Proposal publication date: February 2, 2001
For further information, please call: (512) 458-7236
Subchapter A. REGISTER OF MOTHER-FRIENDLY BUSINESSES
25 TAC §31.1
The new rule is adopted under Health and Safety Code, §12.001,
which provides the Texas Board of Health (board) with the authority to adopt
rules for the performance of every duty imposed by law on the board, the department,
and the commissioner of health; Health and Safety Code, §165.003; the
Texas Omnibus Hunger Act of 1985, 69th Legislature, Chapter 150, Title II,
Human Resources Code, Chapter 33; the Child Nutrition Act of 1966, 42 USC, §1786;
7 CFR Part 246; and 7 CFR Part 248.
§31.1.Register of Mother-Friendly Businesses.
(a)
Definitions. The following words and terms, when used in
this subchapter, shall have the following meanings, unless the context clearly
indicates otherwise.
(1)
Mother-friendly business - A business that actively promotes
and supports breastfeeding by its employees.
(2)
Department - Texas Department of Health
(b)
Minimum standards. To be considered mother-friendly, a
business must:
(1)
adhere to the definition of a mother-friendly business;
(2)
provide work schedule flexibility to allow employees time
for either expressing breast milk or breastfeeding;
(3)
provide employees access to a private area for either expressing
breast milk or breastfeeding;
(4)
provide access to a sink; and
(5)
provide access to a hygienic place to store expressed breast
milk.
(c)
Application for designation as a mother-friendly business.
To apply for designation as a mother-friendly business, a business must:
(1)
complete a mother-friendly application. Applications are
available from the Bureau of Women's Health, Texas Department of Health, 1100
West 49th Street, Austin, Texas 78756 and should be completed by the contact
person for mother-friendly activities. Completed applications should be returned
to the department's Bureau of Women's Health; and
(2)
submit completed applications for review. Completed applications
will be reviewed by the staff of the Bureau of Women's Health for compliance
with the minimum standards set forth in subsection (b) of this section. Businesses
that meet the standards will receive a letter signed by the Commissioner of
Health and a certificate suitable for framing and display. Businesses that
do not meet the standards will be notified by letter and will be offered technical
assistance to achieve compliance.
(d)
Maintaining designated status. A business designated as
mother-friendly must:
(1)
be listed as such by the department. The list of mother-friendly
businesses will be maintained by the staff of the department's Bureau of Women's
Health. The department will make the list available for public inspection;
(2)
keep the staff of the Bureau of Women's Health informed
of any changes in the company's mother-friendly policies. If its mother-friendly
policies change, a business must submit an amended application; and
(3)
comply with minimum standards at all times. If a business
does not comply with the program's minimum standards at all times, the department
may suspend or revoke the mother-friendly designation. A business may amend
its nonconforming policies and may reapply for the mother-friendly designation.
Employees and clients should direct complaints about the activities of a business
that employs the mother-friendly designation to the department's Bureau of
Women's Health.
This agency hereby certifies that the adoption has been
reviewed by legal counsel and found to be a valid exercise of the agency's
legal authority.
Filed
with the Office of the Secretary of State on July 16, 2001.
TRD-200104073
Susan Steeg
General Counsel
Texas Department of Health
Effective date: August 5, 2001
Proposal publication date: February 2, 2001
For further information, please call: (512) 458-7236
25 TAC §31.11, §31.12
The new rules are adopted under Health and Safety Code, §12.001,
which provides the Texas Board of Health (board) with the authority to adopt
rules for the performance of every duty imposed by law on the board, the department,
and the commissioner of health; Health and Safety Code, §165.003; the
Texas Omnibus Hunger Act of 1985, 69th Legislature, Chapter 150, Title II,
Human Resources Code, Chapter 33; the Child Nutrition Act of 1966, 42 USC, §1786;
7 CFR Part 246; and 7 CFR Part 248.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed
with the Office of the Secretary of State on July 16, 2001.
TRD-200104074
Susan Steeg
General Counsel
Texas Department of Health
Effective date: August 5, 2001
Proposal publication date: February 2, 2001
For further information, please call: (512) 458-7236
25 TAC §§31.21 - 31.37
The new rules are adopted under Health and Safety Code, §12.001,
which provides the Texas Board of Health (board) with the authority to adopt
rules for the performance of every duty imposed by law on the board, the department,
and the commissioner of health; Health and Safety Code, §165.003; the
Texas Omnibus Hunger Act of 1985, 69th Legislature, Chapter 150, Title II,
Human Resources Code, Chapter 33; the Child Nutrition Act of 1966, 42 USC, §1786;
7 CFR Part 246; and 7 CFR Part 248.
§31.21.Definitions.
The following words and terms, when used in this subchapter, shall
have the following meanings, unless the context clearly indicates otherwise.
(1)
Adjunctively income eligible -- A determination that an
applicant meets the income eligibility requirements by virtue of being able
to document his or her eligibility for another program.
(2)
Applicant -- A pregnant, breastfeeding or postpartum woman;
infant; or child who is applying to receive WIC Program benefits and includes
individuals who are subsequently applying after the expiration of a certification
period.
(3)
Arms-length transaction -- A good faith business transaction
between parties, each acting voluntarily in his own self-interest, without
necessary advantage to the other in a manner consistent with prevailing business
practice.
(4)
Breastfeeding -- The practice of feeding a mother's breastmilk
to an infant on the average of at least once a day.
(5)
Breastfeeding woman -- A woman up to one year postpartum
who is breastfeeding.
(6)
Caretaker -- An individual age 18 years or older who is
related to and has custodial responsibility for a WIC Program participant
during the majority of a participant's time awake each day.
(7)
Categorical eligibility -- Eligibility for WIC Program
benefits based on a person's status as a pregnant woman, breastfeeding woman,
postpartum woman, infant, or child.
(8)
Certification -- The implementation of criteria and procedures
to assess and document each applicant's eligibility for the WIC Program.
(9)
Child -- A person who has had his or her first birthday
but has not yet had his or her fifth birthday.
(10)
Competent professional authority -- An individual on the
staff of the local agency authorized to determine nutritional risk and prescribe
supplemental foods.
(11)
Current income -- The most recent income data and documentation
available to the applicant; usually the income received by the family in the
month prior to application.
(12)
Disqualification -- The act of ending the WIC Program
participation of a participant, authorized food vendor, or authorized local
agency, whether as a punitive sanction or for administrative reasons.
(13)
Dual participation -- Simultaneous participation in the
WIC Program through one or more WIC clinics, or participation in the WIC Program
and in the Commodity Supplemental Food Program at the same time.
(14)
Family -- A group of related or non-related individuals
who are living together as one economic unit, except that residents of a homeless
facility or institution shall not be considered members of a single family.
(15)
Federal fiscal year -- The 12-month period beginning October
1 of any calendar year and ending September 30 of the following calendar year.
(16)
Food instrument -- A voucher, check, electronic benefits
transfer card (EBT), coupon, or other document which is used by a participant
to obtain supplemental foods.
(17)
Guardian -- An individual legally appointed and responsible
to look after the affairs of a minor.
(18)
Homeless facility -- A facility which provides meal service
and is a supervised publicly or privately operated shelter (including a welfare
hotel, a congregate shelter, or a shelter for victims of domestic violence)
designated to provide temporary living accommodation; an institution that
provides a temporary residence for individuals intended to be institutionalized;
or a public or private place not designated for, or ordinarily used as, a
regular sleeping accommodation for human beings.
(19)
Homeless individual -- A woman, infant, or child who lacks
a fixed and regular nighttime residence; or whose primary nighttime residence
is: a supervised publicly or privately operated shelter (including a welfare
hotel, a congregate shelter, or a shelter for victims of domestic violence)
designated to provide temporary living accommodation; an institution that
provides a temporary residence for individuals intended to be institutionalized;
a temporary accommodation in the residence of another individual not exceeding
365 days; or a public or private place not designated for, or ordinarily used
as, a regular sleeping accommodation for human beings.
(20)
Infant -- A person under one year of age.
(21)
Income -- Gross income before deductions or net income
after business deductions for farm or self-employed individuals.
(22)
Individual with disabilities -- A person who has a physical
or mental impairment that substantially limits one or more major life activities;
a person who has a history or record of such an impairment; or a person who
is perceived by others as having such an impairment. Major life activities
include functions such as caring for oneself, performing manual tasks, walking,
seeing, hearing, speaking, breathing, learning, and working.
(23)
Instream migrant farmworker -- A migrant farmworker who
follows a route or travels from state to state seeking agricultural work and
is not currently at his or her home base.
(24)
Local agency -- An entity under contract to the State
agency to provide WIC Program nutrition services.
(25)
Migrant farmworker -- An individual whose principle employment
is in agriculture on a seasonal basis, who has been so employed within the
last 24 months, and who establishes, for the purpose of such employment, a
temporary abode.
(26)
Minor -- A person over 18 years of age who is no and has
not been married or who has not had the disabilities of minority removed for
general purposes.
(27)
Newborn infant -- An infant less than one month of age.
(28)
Nonprofit agency -- A private agency which is exempt from
income tax under the Internal Revenue Code of 1954, as amended.
(29)
Nutrition education -- A benefit offered to WIC Program
participants which consists of 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 the
relationships between nutrition and health, all in keeping with the individual's
personal, cultural, and socioeconomic preferences.
(30)
Nutritional risk conditions -- Detrimental or abnormal
nutritional conditions detectable by biochemical or anthropometric measurements;
other documented nutritionally-related medical conditions; dietary deficiencies
that impair or endanger health; conditions that directly affect the nutritional
health of a person; or conditions that predispose persons to inadequate nutritional
patterns or nutritionally-related medical conditions, including, but not limited
to, homelessness and migrancy.
(31)
Nutritional risk priorities -- A system of priorities
based on the participant's eligibility category (pregnant, postpartum, breastfeeding,
infant, or child) and specific nutritional risk conditions with indices for
identifying these conditions.
(32)
Nutritional risk priority system -- A priority system
which ranks participants according to the degree of need for supplemental
foods represented by the nutritional risk conditions which the participant
has. This system shall be used to prioritize new applicants and participants
for eligibility for services when a local agency has reached its maximum participation
level.
(33)
Parent -- An individual's mother or father.
(34)
Participant -- A pregnant woman, breastfeeding woman,
postpartum woman, infant, or child who is receiving supplemental foods or
food instruments under the WIC Program, and the breastfed infant of a participating
breastfeeding woman.
(35)
Postpartum woman -- A woman up to six months after termination
of pregnancy.
(36)
Poverty income guidelines -- The poverty income guidelines
prescribed and adjusted annually by the United States Department of Health
and Human Services, effective July 1 of each year.
(37)
Pregnant woman -- A woman determined to have one or more
embryos or fetuses in utero.
(38)
Regulations -- United States Department of Agriculture
regulations, 7 CFR Part 246.
(39)
Separate economic unit -- A group of individuals who indicate
that they have a source of income adequate to sustain the unit and usually
purchase and prepare food separately from other individuals dwelling in the
same household, or a group of individuals who intend to purchase and prepare
food separately from other individuals dwelling in the same household after
being certified as eligible to receive benefits from the WIC Program.
(40)
Shelf price -- The price normally charged all customers
by a vendor for an item sold by the vendor.
(41)
State agency -- The Texas Department of Health in its
role as administrator of the WIC Program.
(42)
Supplemental foods -- Those foods containing nutrients
determined to be beneficial for pregnant, breastfeeding, or postpartum women,
infants, and children as prescribed by the United States Secretary of Agriculture.
(43)
United States Department of Agriculture (USDA) -- The
federal agency which funds the WIC Program.
(44)
Vendor account -- A vendor approved by the state agency
with one or more outlets.
(45)
Vendor agreement -- The formal and legally binding agreement
between the Texas Department of Health and a vendor authorized to accept and
redeem WIC Program food instruments.
(46)
Vendor band -- A comparison group of WIC Program vendors
based on similar monthly WIC sales volume for each account or outlet.
(47)
Vendor competitive pricing -- The process of comparing
the cost of a standard WIC Program food package for a woman, infant, or child
at an outlet to the cost of an average standard food package for the local
agency service area where the vendor is located. Vendor accounts or outlets
of a similar WIC dollar volume are compared within the same local agency service
area.
(48)
Vendor outlet -- An individual store location or mobile
unit.
(49)
Vendor profile -- A form which includes demographic, financial,
and other descriptive information for each vendor outlet.
(50)
WIC program -- The Special Supplemental Nutrition Program
for Women, Infants, and Children (WIC) authorized by the Child Nutrition Act
of 1966, §17, as amended.
§31.22.Recipient Eligibility Requirements.
(a)
An individual shall be eligible to receive services when
the individual receives local agency approval after meeting all of the following
requirements.
(1)
Be determined categorically eligible.
(A)
If a woman, be pregnant or not more than six months postpartum
if not breastfeeding or within one year postpartum if breastfeeding; or
(B)
If a child, be under age five.
(2)
Physically reside within the State.
(A)
The applicant shall provide documentation of residency
within the local agency's approved service area.
(i)
The following documents shall be accepted as documentation
of residency: utility bill; credit card bill; rent receipt; rental agreement;
business letter from an office other than the local agency; other bills; letter
from the person the applicant lives with accompanied by documentation of that
person's address; voter registration card; property tax receipt; documentation
by a third party such as the staff of a church, social service agency, legal-aid
society, school, or a public health official, nurse, doctor, or elected public
official; homeless facility documentation; or documentation of adjunctive
income eligibility.
(ii)
If none of the documents referenced in this section exists,
an applicant may provide a map indicating where the applicant lives.
(iii)
A homeless individual may complete a WIC Program affidavit
stating he or she is homeless or is the parent, caretaker, or guardian of
a homeless applicant.
(B)
If residency has been documented for another family member
within the 60-day period prior to application, that documentation shall be
sufficient for meeting the residency requirement.
(3)
Meet the income requirements as follows:
(A)
Income guidelines shall not exceed 185% of the federal
poverty income guidelines.
(B)
Applicants shall provide documentation of the amount of
income received by each member of the family at each certification and subsequent
certification except as provided in this subsection.
(C)
Income includes the following:
(i)
wages, salary, commissions, or fees;
(ii)
net income from farm and non-farm self-employment;
(iii)
Social Security benefits;
(iv)
dividends or interest on savings or bonds, to include
interest on certificates of deposit (CD) and Individual Retirement Accounts
(IRA), income from estates or trusts, or net rental income;
(v)
public assistance or welfare payments;
(vi)
unemployment compensation;
(vii)
government civilian employee or military retirement or
pensions, or veterans' payments;
(viii)
private pensions or annuities;
(ix)
alimony or child support payments;
(x)
regular contributions from persons not living in the household;
(xi)
net royalties;
(xii)
lump sum payments which are considered as "new money"
received in the last 12 months would include but are not limited to gifts,
inheritances, lottery winnings, worker's compensation for lost income, and
severance pay;
(xiii)
student financial assistance, such as grants and scholarships,
except those grants and scholarships excluded as income as listed in this
section;
(xiv)
capital gains and interest earned on the sale amount.
If there was a loss on the sale, the amount of interest earned on the sale
amount is counted as income. This applies only to capital gains and losses
within the past 12 months. Gains from any sale prior to last 12 months shall
be computed according to clause (iv) of this subparagraph; and
(xv)
other cash income, which includes, but is not limited
to, cash amounts received or withdrawn from any source including savings,
investments, trust accounts and other resources which are readily available
to the family.
(D)
Exclusions from income include, but are not limited to,
the following:
(i)
any basic allowance for quarters received by military personnel
residing off military installations;
(ii)
the value of inkind housing and other inkind benefits,
including, but not limited to, the employer-paid or union-paid portion of
health insurance premiums or other employee fringe benefits, food, or housing
received in lieu of wages;
(iii)
lump sum payments classified as "reimbursement,"such
as monies received from insurance companies for loss or damage to real or
personal property, such as a home or auto, and payments received from a third
party to pay for a specific expense such as medical bills resulting from accident
or injury;
(iv)
operating expenses for those individuals who are self-employed.
For farm income, operating expenses include, but are not limited to, cost
of feed, fertilizer, seed, and other farming supplies; cash wages paid to
farmhands; depreciation; cash rent; interest on farm mortgages; farm building
repairs; and property taxes (but not state and federal income taxes). For
nonfarm self-employed persons, operating expenses include, but are not limited
to, the cost of goods purchased, rent, heat, utilities, depreciation, wages
and salaries paid, and business taxes (but not personal income taxes). Applicants
shall complete a WIC Program affidavit or provide written business records;
(v)
loans, such as bank loans, which are temporarily available
but must be repaid;
(vi)
payments or benefits provided under certain federal programs
or acts which must be excluded by federal law include, but are not limited
to the following: reimbursements from the Uniform Relocation Assistance and
Real Property Acquisition Policies Act of 1970; any payment to volunteers
under Title I (VISTA and others) and Title II (RSVP, foster grandparents,
and others) of the Domestic Volunteer Service Act of 1973, to the extent excluded
by that Act; payment to volunteers under the Small Business Act (SCORE and
ACE), §8(b)(1)(B); income derived from certain submarginal land of the
United States which is held in trust for certain Indian tribes; payments received
under the Job Training Partnership Act; income derived from the disposition
of funds to the Grand River Band of Ottawa Indians; payments received under
the Alaska Native Claims Settlement Act; the value of assistance to children
or their families under the National School Lunch Act, as amended; the Child
Nutrition Act of 1966; and the Food Stamp Act of 1977; payments by the Indian
Claims Commission to the Confederated Tribes and Bands of the Yakima Indian
Nation or the Apache Tribe of the Mescalero Reservation; payments to the Passamaquoddy
Tribe and Penobscot Nation or any of their members received pursuant to the
Maine Indian Claims Settlement Act of 1980; payments under the Low-Income
Home Energy Assistance Act, as amended; student financial assistance received
from any program funded in whole or part under Title IV of the Higher Education
Act of 1965, including the Pell Grant, Supplemental Educational Opportunity
Grant, State Student Incentive Grants, National Direct Student Loan, PLUS,
College Work Study, and Byrd Honor Scholarship programs, including any assistance
received from these programs used for tuition and fees, the costs for rental
or purchase of any equipment, materials, or supplies required of all students
in the same course of study, and an allowance for books, supplies, transportation,
and miscellaneous personal expenses for a student attending a higher education
institution on at least a half-time basis, as determined by the institution,
but not including room and board and dependent care expenses; payments under
the Disaster Relief Act of 1974, as amended by the Disaster Relief and Emergency
Assistance Amendments of 1989; payments received under the Carl D. Perkins
Vocational Education Act, as amended by the Carl D. Perkins Vocational and
Applied Technology Educational Act Amendments of 1990; payments pursuant to
the Agent Orange Compensation Exclusion Act; payments received for Wartime
Relocation of Civilians under the Civil Liberties Act of 1988; value of any
child care payments made under the Social Security Act, §402(g)(1)(E),
as amended by the Family Support Act; value of any "at-risk" block grant child
care payments made under Public Law 101-508, §5081; value of any child
care provided or paid for under the Child Care and Development Block Grant
Act, as amended; mandatory salary reduction amount for military service personnel
which is used to fund the Veteran's Educational Assistance Act of 1984 (GI
Bill), as amended; payments received under the Old Age Assistance Claims Settlement
Act, except for per capita shares in excess of $2000; payments received under
the Cranston-Gonzales National Affordable Housing Act, unless the income of
the family equals or exceeds 80% of the median income of the area; payments
received under the Housing and Community Development Act of 1987; unless the
income of the family increases at any time to not less than 50% of the median
income of the area; payments received under the Sac and Fox Indian claims
agreement; payments received under the Judgment Award Authorization Act, as
amended; payments for the relocation assistance of members of Navajo and Hopi
Tribes; payments to the Turtle Mountain Band of Chippewas (Arizona); payments
to the Blackfeet, Grosventre, and Assiniboine tribes (Montana) and the Papago
(Arizona); payments to the Assiniboine Tribe of the Fort Belknap Indian community
and the Assiniboine Tribe of the Fort Peck Indian Reservation (Montana); payments
to the Red Lake Band of Chippewas; payments received under the Saginaw Chippewas
Indian Tribe of Michigan Distribution of Judgment Funds Act; and payments
to the Chippewas of Mississippi.
(E)
Acceptable documentation of income are: check stubs stating
current earnings; United States Internal Revenue Service form W-2 if less
than 90 days old at the time of application and if reflective of current income;
a signed statement from the employer; completion of WIC Program affidavit
allowed in specific circumstances such as for homeless or those with no income;
completion of WIC Program affidavit for self-employed individuals with no
business accounting records or who are paid in cash and whose employer will
not provide documentation of income; bankbook, if reflective of current income;
current federal tax records; income receipt book or other accounting records
if self-employed; foster child placement letter; other documentation which
the local agency requests to use and which has been approved by the state
agency; and the placement letter from the welfare agency legally responsible
for a foster child.
(i)
Only one document is required, such as one check stub for
each source of income as long as the document is no older than 60 days unless
the applicant only receives such documentation annually, such as a Social
Security Award letter.
(ii)
Instream migrant farmworkers and their families are required
to provide documentation of meeting the income requirements only once every
12 months.
(F)
Certain applicants shall be deemed adjunctively income
eligible as follows.
(i)
Applicants who are fully eligible to receive Food Stamps
benefits or who are fully eligible or presumptively eligible to receive Temporary
Assistance to Needy Families benefits or Medicaid benefits.
(ii)
Applicants who are members of families in which one other
member is fully eligible or presumptively eligible to receive Temporary Assistance
to Needy Families benefits.
(iii)
Applicants who are members of families in which a pregnant
woman or infant is fully eligible or presumptively eligible to receive Medicaid
benefits.
(iv)
Applicants shall provide proof of their status as an applicant
who is adjunctively income eligible as follows.
(I)
The applicant shall provide written documentation from
the other benefit program which shows current eligibility in the benefit program
at the time of application to the WIC Program.
(II)
The applicant may grant permission for the local agency
to conduct a phone or computer on-line verification from the benefit program
on behalf of the client when the local agency has the capability to do so.
(v)
Applicants eligible to receive Food Stamp benefits shall
provide documentation that the applicant himself or herself is fully eligible
to receive such benefits.
(vi)
Applicants applying as adjunctively income eligible based
on receipt of Food Stamps by a family member as head of household shall provide
documentation that the person named as head of household for Food Stamps purposes
is a member of the applicant's family and is fully eligible to receive such
benefits.
(vii)
Applicants eligible to receive Temporary Assistance to
Needy Families or Medicaid shall provide documentation that the applicant
himself or herself is fully or presumptively eligible to receive such benefits.
(viii)
Applicants applying as adjunctively income eligible
based on a family member's eligibility to receive Temporary Assistance to
Needy Families or Medicaid shall provide documentation of the family member's
receipt of such benefits and that the recipient is a member of the applicant's
family.
(ix)
Applicants eligible for adjunctive income eligibility
shall verbally declare their total gross family income or net income if self-employed.
(G)
Income eligibility shall be based on the total income of
the family.
(H)
When determining an applicant's income eligibility for
WIC Program services, the local agency shall determine the size of the applicant's
family as follows:
(i)
All family members shall be counted except for individuals
who qualify as a member of a separate economic unit.
(I)
A pregnant woman shall be counted as more than one person
according to the number of children she expects to give birth to. If she is
expecting one child, she shall be counted as two individuals; if she is expecting
twins, she shall be counted as three individuals and so on.
(II)
A foster child shall be considered a separate family of
one.
(ii)
Persons temporarily absent from the family may be counted
if the following circumstances exist:
(I)
other members still consider the family to be the principal
residence of the absent member;
(II)
the absence does not exceed six months;
(III)
the absence is for a purpose such as school, training,
employment, hospitalization, or institutionalization; and
(IV)
the absent member continues to exercise customary family
responsibilities such as income, planning, or physical care.
(I)
Some individuals may qualify as a separate economic unit
as an exception if the unit has an adequate source of income and usually purchases
and prepares food separately from other persons who live in the same dwelling
or the unit intends after certification to purchase and prepare food separately
from other persons who live in the same dwelling. The following shall not
be certified as a separate economic unit:
(i)
minor children who live with their parent or parents;
(ii)
a child under age 18 who lives with family members who
serve as managing conservators and provide more than half of the child's support,
and the family members state that the child is under parental control;
(iii)
spouses; or
(iv)
two people who live together and represent themselves
to the community as husband and wife.
(J)
Individuals who have been determined eligible for WIC Program
services are not required to report changes in income during certification
periods.
(i)
The local agency has no responsibility to monitor the continued
income eligibility of the participant during the certification period.
(ii)
If the local agency becomes aware of changes in income
during a certification period, the participant shall be reassessed for income
eligibility under the rules for determining income eligibility.
(4)
Have one or more nutritional risk conditions as defined
by the United States Department of Agriculture's national nutritional risk
codes and conditions, nutritional risk priorities, and nutritional risk priority
system.
(A)
At subsequent certification, if there is a possibility
of regression in nutritional status without WIC nutrition education and supplemental
foods, an applicant may be determined at nutrition risk for regression by
the competent professional authority.
(B)
Regression shall be used only at a subsequent certification
and only when no other risk condition can be determined.
(C)
Applicants may be certified for regression for one certification
period only.
(5)
Be physically present at the initial WIC Program certification
and the subsequent certification:
(A)
Exceptions may be granted in limited circumstances if approved
by the competent professional authority as follows.
(i)
Newborn infants may be certified without being physically
present if all required documentation is available, the local agency has elected
to implement this practice, and the infant is physically presented to the
local agency by the time the infant is six weeks of age.
(ii)
An applicant or parent, caretaker, or guardian of an applicant
who is an individual with a disability may be certified without being physically
present because he or she is unable to be physically present because of his
or her disability.
(I)
Disability conditions which meet this standard are a medical
condition that necessitates the use of medical equipment that is not easily
transportable; a medical condition that requires confinement to bed rest;
or a serious illness that may be exacerbated by coming into the local agency.
(II)
A verbal declaration by the applicant or parent, caretaker,
or guardian of the applicant that the applicant has a disability and cannot
be physically present is sufficient to request the exception.
(iii)
An infant, other than a newborn infant, or child may
be certified without being physically present if being physically present
would present an unreasonable barrier and the infant or child has documented
ongoing health care from a health care provider other than the WIC local agency.
(iv)
An infant, other than a newborn infant, or child may be
certified without being physically present if the infant or child was physically
present at a WIC Program certification or subsequent certification within
the one-year period which ended on the date the infant or child was last certified
or subsequently certified and the infant or child is under the care of one
or more working parents, caretakers, or guardians who verbally declare that
their working status presents a barrier to bringing the infant or child to
the WIC local agency.
(B)
Exemptions may be granted for one certification period,
or for an extended period of time if the competent professional authority
approves the extended period of time.
(6)
Provide documentation of identification:
(A)
The following documents shall be accepted as documentation
of identification: birth certificate; hospital records, including a "crib"
card, hospital wrist band, or discharge papers; baptismal certificate; marriage
license; drivers license; WIC Family Identification Card; immunization card;
school identification card; employment identification card; military identification
card; official identification card with picture; passport or immigration records;
letter from Medicaid, Food Stamps, Temporary Assistance to Needy Families,
or the Supplemental Security Income Programs; indigent health care identification
card; paycheck stub with imprinted name; voter registration card; identification
card from another WIC local agency; Social Security card; housing or rental
lease; loan papers from a bank or finance company; or property tax receipt.
(B)
Each local agency may designate additional documents which
shall be accepted as documentation of identification with the approval of
the state agency.
(b)
Citizenship is not a requirement for eligibility.
(1)
As long as the local agency has caseload openings, individuals
who qualify for WIC Program services shall be served without regard to citizenship
status.
(2)
No individual's participation in the WIC Program may be
terminated because the individual is suspected as or known to be an undocumented
alien.
(3)
WIC Program confidentiality requirements apply to all applicants
and participants regardless of their citizenship status.
§31.23.Recipients of Supplemental Food Benefits.
(a)
Regardless of their age, pregnant, breastfeeding, and postpartum
participants may be designated as recipients of supplemental food benefits
for themselves and/or their infants and/or children.
(b)
Regardless of their age, parents, guardians, caretakers,
or foster parents of infant and/or child participants may be designated as
recipients of supplemental food benefits for their infants and/or children.
(c)
Caretakers of a participant may be designated as recipients
of supplemental food benefits for the participant if the caretakers are at
least 18 years of age or older.
(d)
A proxy who is 16 years of age or older may be designated
in writing by a WIC Program participant, or parent, caretaker, guardian of
a participant, or a foster parent to act as the supplemental food benefit
recipient. Each time a proxy is designated to act as the recipient, such designation
shall be provided in writing to the local agency, and the proxy shall provide
identification for himself or herself and present the participant's WIC Program
family identification card.
(e)
Not more than one month's supplemental food benefits may
be issued to a proxy.
(f)
Proxies of participants residing in a homeless facility
or institution shall not pick up supplemental food benefits for all WIC Program
participants in their respective homeless facilities or institutions or transact
the food instruments in bulk. The proxy may act on the behalf of only one
certified family.
(g)
Recipients of supplemental food benefits shall sign the
WIC Program Supplemental Information Form prior to receiving such benefits.
(h)
Recipients of supplemental food benefits shall provide
identification at each issuance of food benefits.
§31.24.Provision of Immunizations to WIC Applicants and Participants.
(a)
Immunizations shall be offered to WIC Program applicants
and participants and the minor siblings of WIC applicants and participants
by local agencies in conjunction with scheduled WIC Program services and in
accordance with the local agency immunization plan.
(b)
Applicants may receive immunizations at the time of the
eligibility determination for WIC Program services regardless of the outcome
of the eligibility determination.
(c)
Applicants, participants, and the minor siblings of applicants
and participants shall be provided immunizations free of charge.
(d)
Immunizations shall be provided to infants and children
only upon completion of informed consent procedures.
§31.25.Participant Certification Periods.
(a)
After eligibility has been determined, applicants shall
be enrolled and certified to receive WIC Program benefits for a specified
length of time. The certification period shall begin on the date the applicant
is determined eligible.
(b)
A pregnant woman shall be certified to receive one set
of food instruments each month for the duration of her pregnancy and is eligible
to receive one set of food instruments between delivery of the baby and six
weeks postpartum. The certification expiration date shall be set at six weeks
after her expected delivery date.
(c)
A postpartum woman who is not breastfeeding shall be certified
to receive one set of food instruments each month until she is six months
postpartum. The certification expiration date shall be set for the day the
woman is six months postpartum.
(d)
A breastfeeding woman shall be certified to receive one
set of food instruments each month for a six-month period. The certification
expiration date shall be set for the last day of the sixth month. Any subsequent
certification shall expire on the day of the infant's first birthday.
(e)
A child one to five years of age shall be certified to
receive one set of food instruments each month for a six-month period. The
certification expiration date shall be set for the last day of the sixth month.
For a child turning age five, the certification expiration date shall be set
for the last day of the month the child turns age five.
(f)
An infant six months of age or older at the time of initial
enrollment shall be certified to receive one set of food instruments each
month for a six-month period. The certification expiration date shall be set
for the last day of the sixth month.
(g)
An infant younger than six months of age at the time of
initial enrollment shall be certified to receive one set of food instruments
each month until the infant's first birthday. The certification expiration
date shall be set for the day of the infant's first birthday.
§31.31.Selection of a Local Agency as a WIC Provider.
(a)
Selection of a local agency to provide WIC Program services
will be based on the local agency priority system as follows:
(1)
A public or private nonprofit health agency which can provide
ongoing routine pediatric and obstetric care or administrative services shall
receive first priority consideration.
(2)
A public or private nonprofit health or human service agency
which will enter into a written agreement with another agency for either ongoing
pediatric and obstetric care or administrative services shall receive second
priority consideration.
(3)
A public or private nonprofit health agency which will
enter into a written agreement with private physicians licensed by the state
to provide ongoing pediatric and obstetric care to a specific category of
participants (women, infants, or children) shall receive third priority consideration.
(4)
A public or private nonprofit human service agency which
will enter into a written agreement with private physicians licensed by the
state to provide ongoing routine pediatric and obstetric care shall receive
fourth priority consideration.
(5)
A public or private nonprofit human service agency which
will provide ongoing routine pediatric and obstetric care through referral
to a health provider shall receive fifth priority consideration.
(6)
No WIC Program funds shall be expended to reimburse private
physicians for the health services performed.
(b)
The state agency shall establish an affirmative action
plan each year to rank order each county's relative need for WIC Program services
based on the total number of potentially eligible persons in each county.
(1)
The following criteria shall be used to rank each county.
(A)
Estimates of the proportion of infants below 185% of the
federal income guidelines by ethnic group; and
(B)
Total live births for each county and ethnic group for
the previous five years.
(2)
The affirmative action plan shall be used to identify the
top one-third of Texas counties (1 through 85) as high priority due to their
status as having the most unserved potentially eligible persons.
(3)
The most needy one-third of Texas counties shall be designated
as targets for the most extensive outreach efforts by the state agency when
soliciting for local agencies.
(A)
If no local agency has applied to provide services, the
state agency shall publish a notice in the media of that area to solicit applications
from other potential agencies.
(i)
The state agency shall include in the notice a brief explanation
of the program, a description of the priority system, and a request that interested
local agencies notify the state agency of their interest within 30 days.
(ii)
The state agency shall also contact all potential agencies
in the area to ensure they are aware of the opportunity to apply for selection
as a local agency.
(B)
If no local agency which meets the criteria for first priority
expresses an interest, the state agency may consider applications from agencies
in the lower priorities.
(C)
The state agency shall fund new local agencies in conformance
with the sequential ranking of the affirmative action plan and the local agency
priority system.
(c)
All WIC Program initiation and expansion shall be executed
utilizing a request for proposal (RFP) in accordance with USDA Food and Nutrition
Services Instruction 802-1, the state agency's approved affirmative action
plan, and 10 Texas Administrative Code, Chapter 199, Electronic Business Daily,
under one of the following conditions:
(1)
the state agency determines it is in the best interests
of the state to initiate an open competitive statewide RFP;
(2)
an existing WIC Program local agency is either disqualified
as a provider of WIC Program services or does not wish to continue as a local
agency;
(3)
a state agency Public Health Region wishes to transfer
direct WIC Program services to a local agency; or
(4)
a prospective agency satisfactorily documents to the state
agency that a specific geographical area is underserved and the current WIC
local agency providing services in that area is unable to provide services
to that geographical area and declines to develop a collaborative effort to
deliver services to meet the documented unmet need.
(d)
The state agency shall evaluate proposals to serve as a
WIC Program local agency submitted in response to an RFP according to the
following criteria:
(1)
the ranking of the applying agency in the established priority
system;
(2)
the need for additional WIC Program services in the geographic
area based upon review of the number of current participants by priority and
the total number who receive services in comparison to the total number of
potential eligible participants in an area, and the local agency applicant's
estimate of the number to be served;
(3)
the clinic locations proposed in an application relative
to the existing WIC Program local agency clinics operated by other WIC Program
authorized local agencies;
(4)
overall estimated costs of operating the new local agency
in comparison to the estimated revenue available to cover local agency costs;
(5)
the staffing pattern of the local agency to support WIC
Program services proposed by the applying local agency;
(6)
planned hours of operation to include extended clinic hours
which are defined as weekends and outside of traditional hours of 8:00 a.m.
to 5:00 p.m., Monday through Friday;
(7)
the availability of other medical services through the
applicant agency or by referral; and
(8)
specific application criteria in the request for proposal.
(e)
The state agency shall advise respondent agencies of the
status of their applications to provide WIC Program services in accordance
with the schedule of events in the public notice and the RFP. At a minimum,
the schedule of events shall provide for written notification of approval
or disapproval to the applicant agencies within 30 days of the closing date
for acceptance of responses to the RFP.
(f)
In the event of an emergency or unexpected interruption
of WIC Program services, the state agency WIC Director may waive any or all
parts of the application process if necessary to ensure uninterrupted delivery
of WIC services in a geographic area or areas.
(g)
When a local agency submits an incomplete application for
participation either unsolicited or at the request of the state agency as
a result of an emergency situation, the state agency shall notify the applicant
within 15 days of the receipt of the incomplete application of the additional
information needed. The state agency shall notify the applicant agency in
writing within 30 days of receipt of a complete application of the approval
or disapproval of the application.
§31.32.Selection of Vendors for WIC Initial Authorization for Participation.
(a)
A representative from the state agency or the nearest local
agency shall perform an on-site evaluation of a vendor applying for authorization
to redeem WIC food instruments.
(1)
The state or local agency representative shall complete
a vendor evaluation form during the visit to the vendor indicating the type
of WIC-authorized foods in stock and their shelf prices.
(2)
The state or local agency representative shall recommend
approval or disapproval of the vendor's application based on the observations
during the store visit.
(3)
The owner or manager or a store representative shall have
the opportunity to review the information on the vendor evaluation form and
shall sign the form to acknowledge accuracy of shelf prices listed at the
time of the evaluation. The evaluator shall provide a copy of the form, including
the date, local agency number, and the name of the evaluator, to the vendor
at the time of the in-store evaluation.
(b)
The state agency shall base its decision to authorize a
vendor on the following criteria:
(1)
The vendor's shelf prices are competitive for the local
agency area.
(2)
The vendor has sufficient quantities of authorized milk,
evaporated milk, cheese, cereal, contract infant formula, contract infant
cereal, eggs, peanut butter, and dried beans.
(A)
pharmacy may elect to provide only the designated contract
milk and soy formulas and special formulas.
(B)
A vendor may elect not to provide infant formula.
(C)
For vendors who elect to provide all authorized foods,
the following amounts of each food type shall constitute sufficient quantities:
(i)
a total of at least 108 ounces of adult cereal, including
36 ounces each of at least three of the following types of cereal: oat, corn,
wheat, rice, and multi-grain;
(ii)
at least six dozen Grade A or AA large, medium, or small
size eggs;
(iii)
a total of at least 18 containers of juice, including
at least two varieties of juice in 46-ounce fluid cans and/or 12-ounce frozen
cans;
(iv)
a total of at least six pounds of cheese;
(v)
a total of at least nine gallons of milk, some of which
must be available in one-half gallon containers;
(vi)
at least three one-pound bags of dry beans;
(vii)
at least three 18-ounce jars of peanut butter;
(viii)
at least eight 12-ounce cans of evaporated milk;
(ix)
at least 31 cans of milk or soy concentrate infant formula
(contract brand) and either eight cans of milk-based powder formula or nine
cans of soy powder formula (contract brand); and
(x)
at least two 8-ounce boxes or one 16-ounce box of infant
cereal.
(3)
The vendor provides milk in gallon and half-gallon containers
and juice in 46-ounce or 12-ounce containers.
(4)
The vendor's shelf prices do not exceed the maximum prices
on WIC food instruments.
(5)
The recommendation by the state or local agency representative
who conducted the on-site evaluation.
(6)
The vendor has a retail food operations permit or food
manufacturer's permit from the applicable city, county, district, or state
health authority.
(7)
The vendor's store is clean, with fresh merchandise (no
expired food items).
(8)
The vendor has no apparent conflict of interest with the
local agency in the vendor's service area.
(9)
The vendor has posted prices for food items.
(10)
If applicable, the vendor's history of WIC Program noncompliance.
(c)
If the state agency disapproves the application by a vendor
for authorization, the reasons for the disapproval shall be provided to the
vendor in writing.
(d)
Vendors who apply for authorization who have been evaluated
twice within a six-month period and denied approval both times shall not be
evaluated again until at least six months from the last evaluation.
(e)
In the event a vendor purchases or acquires a store location
or business which was in the process of being disqualified or which is disqualified
from the WIC Program at the time of acquisition, the vendor's application
for that store location or business shall not be considered until the state
agency makes a determination that the sale was a bona fide arms-length transaction.
The state agency will make this determination no later than six months from
the date of application. If the state agency determines that the transfer
was not an arms-length transaction, the application shall not be considered
until the disqualification period has been served.
(f)
If the state agency has allowed the vendor agreement for
a previous owner of a store location or business to expire for noncompliance
or notified the previous owner that the vendor agreement for the store location
or business will be allowed to expire for noncompliance, a new owner's application
for that store location or business shall not be considered until at least
six months from the expiration date of the previous owner's last vendor agreement
unless the state agency makes an earlier determination that the sale was a
bona fide arms-length transaction.
(g)
The state agency may waive the requirement for an on-site
evaluation when a grocery chain comprising 20 or more outlets authorized to
participate in the WIC Program purchases or merges with another chain with
20 or more authorized outlets if the merger or purchase does not materially
change the stores' staff or pricing structure.
(h)
Upon request, the state agency may provide an applicant
vendor with tentative authorization to redeem WIC food instruments starting
the day the store opens.
(1)
To obtain tentative authorization, the vendor shall comply
with all of the following criteria:
(A)
The owner of the applicant store owns one or more stores
that have been participating in the WIC Program under the current ownership
for at least the six-month period prior to application for authorization.
(B)
For the six-month period prior to application for authorization,
none of the participating stores has exceeded 108% of the competitive pricing
criteria for both the woman/child and infant food packages for their respective
local agency vendor bands.
(C)
None of the participating stores has been disqualified
from program participation for two or more months within the 12-month period
prior to application for authorization.
(D)
The applicant store notifies the state agency at least
two months prior to the official opening date.
(E)
The applicant store's manager or assistant manager acknowledges
receipt and understanding of the WIC Program vendor manuals provided with
the agreement, the allowable foods list, and vendor rules and policies.
(F)
The applicant store's manager or assistant manager has
scored at least 70% on a written test provided by the state agency and returned
to the state agency no later than five days prior to the applicant store's
opening date.
(2)
If, after evaluation, a store which has received tentative
authorization from the state agency does not meet all authorization criteria,
the store shall be notified of its tentative agreement expiration date and
instructed to discontinue redeeming the WIC Program food instruments. The
state agency shall honor properly redeemed food instruments from the opening
date until the tentative agreement expiration.
(i)
On a temporary basis, the state agency may consider and
approve applications from new vendors for the following reasons:
(1)
the vendor has been authorized to accept Food Stamps;
(2)
the disqualification of an existing authorized vendor in
a local agency service area would create inadequate access for WIC Program
participants;
(3)
a currently-authorized vendor outlet(s) changes ownership;
or
(4)
authorization of a new vendor would result in a significant
cost advantage to the WIC Program.
(j)
The state agency may deny an application to participate
as a vendor if an owner, partner, principal stockholder, officer, director,
manager, or operator of the applicant was an owner, partner, principal stockholder,
officer, director, manager, or operator of another vendor which has been disqualified
or which has violated WIC Program procedures, policies, rules or regulations.
(k)
The state agency may hold an authorized vendor individually
responsible for previous violations by an owner, partner, manager, or principal
stockholder of the vendor when considering renewal of the vendor's agreement
or future applications for vendor agreements.
§31.33.Selection of Vendors for Reauthorization for Participation.
(a)
Vendors with a current vendor agreement shall be evaluated
for issuance of a subsequent vendor agreement under WIC Program procedures,
policies, rules, and regulations and shall be reauthorized unless notified
in writing by the state agency at least 15 days before expiration of the vendor
agreement.
(b)
Prior to reauthorization, the state agency shall assess
and review the qualifications of all vendors to assure that each continues
to meet the WIC Program's goals. Criteria utilized in assessment and determination
of qualifications for reauthorization include, but are not limited to.
(1)
Competitive prices for the local agency area. A vendor's
prices shall be considered competitive if the combined prices for the items
included in the standard woman/child and/or infant food package do not exceed
108% of the local agency food package averages for the vendor's band.
(2)
Volume of WIC sales. The vendor's volume of WIC sales exceeds
$300 a month. If monthly sales fall below $300 a month for three consecutive
months prior to the time of the vendor agreement reauthorization evaluation,
the vendor agreement may not be renewed.
(3)
Previous compliance with WIC Program procedures, policies,
rules, and regulations. The vendor has satisfactorily complied with food instrument
redemption and submission procedures, policies, rules, and regulations.
(4)
Continuing to meet selection criteria. The vendor continues
to meet the selection criteria as stated in this section.
(c)
Previous noncompliance with WIC Program procedures, policies,
rules, and regulations shall be considered by the state agency in determining
if the vendor is eligible for a subsequent contract.
(1)
Examples of noncompliance violations include, but are not
limited to:
(A)
Two or more state agency written notifications of problems
with competitive pricing criteria within the term of a 12-month vendor agreement;
(B)
one or more state agency written notifications of problems
with competitive pricing criteria within the term of a six-month probationary
vendor agreement;
(C)
previous voluntary withdrawal as an authorized vendor after
having received a warning or disqualification letter from the state agency.
Such a warning or disqualification shall be entered into the vendor's record.
(2)
The state agency shall also consider a history of noncompliance
when evaluating a vendor's application for authorization at new or additional
sites.
(d)
The state agency shall allow a vendor's agreement to expire
and not be renewed if the vendor has a history of noncompliance with provisions
in the vendor agreement or the WIC Program procedures, policies, rules, and/or
regulations, including compliance with the competitive pricing criteria unless,
at the request of an otherwise compliant vendor, the state agency negotiates
a civil money penalty in lieu of nonrenewal.
(1)
Expiration of the vendor agreement is not subject to appeal.
(2)
In the event the vendor's agreement has been allowed to
expire due to previous noncompliance, a vendor's request for reauthorization
shall not be considered until at least six months from the expiration date
of the vendor's last agreement.
(e)
Any vendor for which the state agency has identified violations
that have resulted in, or would have resulted in, a one-month disqualification
from the WIC Program but has not had any state agency written notification
of problems with competitive pricing within the current agreement term, shall
have a probationary vendor agreement that expires March 31 or September 30
of the current federal fiscal year, whichever results in the shorter contract
period.
(f)
If the state agency agrees to negotiate a civil money penalty
in lieu of nonrenewal of the vendor agreement for noncompetitive pricing for
an otherwise compliant vendor, the following shall apply:
(1)
The state agency shall not negotiate a civil money penalty
in lieu of nonrenewal for competitive pricing for the second of two consecutive
agreement periods.
(2)
The civil money penalty for noncompetitive pricing shall
be calculated as follows:
(A)
The vendor's average monthly redemptions for the most recent
six-month period prior to the date of the nonrenewal notice shall be determined.
(B)
The resulting average monthly redemptions shall be multiplied
by 50% (.50).
(C)
The final calculated civil money penalty shall not exceed
$10,000.
(g)
All vendors must have a retail food operation permit or
food manufacturers' permit from the applicable city, county, district, or
state health authority.
§31.34.Calculation and Use of Vendor Competitive Pricing Data.
(a)
The state agency shall use the following calculation to
determine whether an applicant vendor's prices are competitive with those
of similar vendors in the local agency service area.
(1)
The state agency data system calculates by vendor outlet
the average unit costs to the state agency for each food type based on the
food instruments redeemed by that vendor outlet.
(2)
Authorized vendor outlets within a local agency service
area are grouped into volume vendor bands.
(3)
Utilizing food-type averages for each vendor outlet within
a vendor band, the state agency determines the local agency average standard
food package costs for an infant and/or a woman/child participant for each
vendor band.
(4)
A vendor outlet's average standard food package costs are
determined based on the store evaluation for an applicant vendor or actual
WIC redemption data for authorized vendors.
(5)
The state agency compares the vendor outlet's standard
food package costs to the local agency's average standard food package costs
for that vendor band. Local agency averages for a prior period will be used.
An outlet's standard food package costs are considered competitive if they
are less than or equal to 108% of the local agency's average standard food
package costs for that vendor band.
(6)
The state agency may make adjustments to the local agency
averages due to anomalies, such as those caused by sharp wholesale price increases
or crop failures since the prior period in which the averages were calculated.
(7)
The state agency may reassign a vendor to an alternative
comparison group when the vendor, such as a high-volume, national discount
superstore, is not characteristic of other vendors in the band; when the vendor
is the only store in a rural area within the local agency; or when the vendor
is the sole occupant of a band.
(b)
The state agency shall provide a vendor with written notification
of noncompliance with competitive pricing. Any vendor that receives one written
notification of noncompliance with competitive pricing during the last six
months of the federal fiscal year shall receive a probationary six-month agreement
at the beginning of the next fiscal year if all noncompliance issues have
been corrected.
§31.35.Vendor Agreement with the State Agency.
(a)
Once a vendor has been approved to participate in the WIC
Program, a written agreement shall be executed and signed by authorized officials
of the state agency and the vendor.
(1)
The agreement shall be prepared by the state agency and
mailed to the vendor for endorsement.
(2)
Upon receipt by the vendor, the vendor shall enter the
store's business name, telephone number, federal income tax number, and State
of Texas Comptroller number; sign the agreement; and return it to the state
agency.
(3)
Each vendor agreement shall include at least one vendor
profile detailing, at a minimum, the name, location, type of facility, gross
sales, gross food sales, and gross non-food sales for each outlet covered
by the agreement.
(4)
The state agency shall assign a WIC account number to the
vendor and enter it on the agreement. Outlet identifiers shall also be assigned
where applicable.
(5)
A state agency official shall sign the agreement. The state
agency shall forward one copy to the vendor and shall retain the original
document.
(6)
Upon receipt of the copy signed by the state agency official
and bearing a WIC account number, the vendor may commence accepting WIC Program
food instruments.
(b)
Any vendor that has not previously been authorized by the
WIC Program shall receive a probationary vendor agreement that expires March
31 or September 30 of the current federal fiscal year, whichever results in
the shorter contract period.
(c)
A change of ownership of an authorized outlet or account
terminates the agreement between the state agency and the vendor. A change
of ownership occurs when all, or substantially all, of the property or assets
of a vendor are acquired by a purchaser in a bona fide arms-length transaction.
(1)
In the event a store location/business under previous ownership
was disqualified or is in the process of being disqualified at the time of
acquisition, the new owner's application for that store location/business
shall not be considered until the state agency makes a determination that
the sale was a bona fide arms-length transaction. The state agency will make
this determination no later than six months from the date of application.
If the state agency determines that the transfer was not a bona fide arms-length
transaction, the application shall not be considered until the disqualification
has been served.
(2)
If the state agency has notified the previous owner that
the vendor's agreement for a store location/business shall be allowed to expire,
the new vendor's application for that store location/outlet shall not be considered
until at least six months from the expiration date of the previous vendor's
last agreement unless the state agency makes an earlier determination that
the sale was a bona fide arms-length transaction.
(3)
If a store/location under previous ownership is not disqualified
or is not in the process of being disqualified at the time of acquisition,
and/or the previous owner has not been notified that the vendor agreement
for that store location/business will be allowed to expire, and the acquiring
party is in compliance with the rules, regulations, and vendor qualification
criteria of the WIC Program, the acquiring party may, upon request, be authorized
as a WIC Program vendor.
(A)
The applicant vendor must submit a written affidavit stating
that a change of ownership has been effected and duly executed by the seller
and purchaser or their duly authorized officers or other agents.
(B)
The affidavit shall include, at a minimum, the following
information and any other information the state agency deems necessary: name
and business address of the seller; name and business address of the purchaser;
WIC vendor account number and outlet number, if applicable; name(s) and street
address(es) of the outlet location(s); effective date of ownership change;
and State of Texas Comptroller tax number of new owner.
(d)
WIC food instruments redeemed at an applicant store shall
not be paid until the store has been duly authorized, including completion
of an on-site evaluation, approval by the local agency, execution of the vendor
agreement and vendor profile, and assignment of an account/outlet number by
the state agency.
(e)
A vendor's unilateral termination of a vendor agreement
after receipt of notification by the state agency of a violation shall not
deprive the state agency of jurisdiction to impose sanctions for WIC Program
violations.
(f)
The vendor agreement does not constitute a license, since
a vendor does not require the state agency's approval to engage in the retail
grocery business in Texas and the vendor would not effectively be deprived
of this right in the absence of WIC Program authorization.
(1)
The vendor agreement conveys no property interest since
federal law does not give rise to a legitimate claim of entitlement for vendors.
(2)
The terms of authorization are established in the vendor
agreement between the state agency and the vendor, and the contractual relationship
ends with the expiration of the vendor agreement.
(3)
The state agency as well as officers, agents, and employees
of the state agency are not responsible for losses incurred by a vendor as
a result of the expiration of the vendor agreement.
§31.37.Selection of WIC Program Allowable Foods.
(a)
Criteria for approving products for inclusion in the WIC
Program food package are based on federal regulations, packaging, cost, cultural
acceptability, and nutritive value.
(b)
A product shall meet the federal regulations governing
the WIC Program food package in order to be considered for approval through
the WIC Program.
(c)
The state agency may restrict the number of brands and
types of any products in order to contain the cost of the food package and
minimize the confusion for WIC participants. The state agency is not obligated
to authorize every available food that meets the federal requirements.
(d)
The state agency shall review the WIC Program list of allowable
foods annually to determine the need for adding or deleting food products.
(1)
If the state agency determines that the list of allowable
foods should be changed, the state agency shall notify both juice and cereal
manufacturers of that intent through a request for information (RFI).
(2)
Juice and cereal manufacturers may contact the WIC Program
at any time during the year to request that their names and addresses be added
to the mailing list for an RFI.
(e)
The criteria for each food type are as follows:
(1)
Milk.
(A)
Any brand of unflavored, fresh, whole, reduced fat (2.0%),
low-fat (0.5% or 1.0%) or fat-free (nonfat or skim) cow's milk including cultured
buttermilk marketed in Texas containing or fortified with vitamins A and D
to meet the federal standards.
(i)
Only gallon and half-gallon plastic or paper cartons are
allowed.
(ii)
"High calcium" fluid milk is not allowed.
(iii)
Goat's milk is not allowed.
(iv)
Fluid milk with added enzymes, such as lactose-free milk,
may qualify in quart, half-gallon, and gallon containers. Brands shall be
approved as needed.
(B)
Any brand of whole or fat-free (nonfat) evaporated cow's
milk marketed in Texas containing or fortified with vitamins A and D to meet
the federal standards.
(i)
Only 12-ounce cans are allowed.
(ii)
Evaporated filled milk is not allowed.
(iii)
Sweetened condensed milk is not allowed.
(C)
Any brand of nonfat, dry, powdered milk marketed in Texas
containing or fortified with vitamins A and D to meet the federal standards.
Nonfat, dry, powdered milk may be issued in 9.6-ounce, 25.6-ounce, and 64-ounce
boxes.
(2)
Cheese.
(A)
Any unflavored domestic brand of pasteurized processed
American, Monterey Jack, Colby, Colby-Jack, Natural Cheddar, Longhorn, or
Mozzarella cheese in block or sliced form.
(B)
Package sizes smaller than 10 ounces are not allowed.
(C)
Shredded or individually wrapped slices of cheese are not
allowed.
(D)
Cheese foods or cheese spreads are not allowed.
(3)
Cereals.
(A)
Cereal brands shall contain a minimum of 28 milligrams
of iron per 100 grams of dry cereal, and not more than 21.2 grams of sucrose
and other sugars per 100 grams of dry cereal (6 grams per ounce).
(i)
Package sizes less than 10 ounces are not acceptable. The
state agency may further limit the package size(s) authorized for a brand.
(ii)
Culturally acceptable cereals or cereals targeting specific
ethnic groups shall be considered.
(iii)
If cereals from one manufacturer have similar names and
package designs and some do not qualify, the state agency reserves the right
to not approve those types that would otherwise qualify to reduce the potential
for confusion by vendors and participants.
(iv)
The state agency reserves the right to determine the number
and brands of cereals, which shall include at least one hot cereal and at
least one corn, wheat, oat, rice, and multi-grain cereal.
(B)
Except as provided in this subparagraph, authorized brands
of cereals shall be the least expensive per ounce within the respective grain
groups.
(i)
The state agency may authorize a more expensive brand with
higher fortification and/or lower sugar content in lieu of a less expensive
brand within a particular grain group.
(ii)
The state agency may consider consumer acceptability as
well as the suitability for children among its selection criteria.
(C)
The product shall be available for retail purchase on or
before the effective date of the approved food list or it will not be considered
by the state agency for authorization.
(D)
The product form and marketing approach shall be consistent
with the promotion of good nutrition and education.
(4)
Juice.
(A)
All single-strength fluid fruit or vegetable juices shall
contain a minimum of 30 milligrams of vitamin C per 100 milliliters and all
frozen concentrated fruit or vegetable juices shall contain a minimum of 30
milligrams of vitamin C per 100 milliliters of reconstituted juice.
(i)
Juices shall be 100% juice and shall contain no added sugar,
or other natural or artificial sweeteners.
(ii)
The state agency may determine the number and types of
juices authorized and may consider their suitability for children.
(iii)
Fluid juice shall be packaged in 46-ounce containers.
(iv)
Frozen juice shall be packaged in 11.5-ounce or 12-ounce
containers.
(v)
Fluid juice for the special homeless food package shall
be packaged in a 6-ounce can.
(vi)
Fluid juice shall not be packaged in glass, plastic, or
cardboard containers.
(vii)
Canned and frozen varieties of juice with the same brand
name shall be evaluated separately.
(B)
The state agency reserves the right to limit the authorized
packaging of specific types of juice due to pricing or other considerations.
(C)
If juices from one manufacturer have similar names and
package designs and some do not qualify, the state agency reserves the right
to not approve those types that would otherwise qualify to reduce the confusion
by vendors and participants.
(D)
The product shall be available for retail purchase on or
before the effective date of the approved food list or it will not be considered
by the state agency for authorization.
(E)
The product form and marketing approach shall be consistent
with the promotion of good nutrition and education.
(5)
Eggs.
(A)
Only fresh grade A or grade AA large, medium, or small
chicken eggs are allowed.
(B)
Fertile, brown, or free-range eggs are not allowed.
(C)
Eggs shall be packaged only in cartons of a dozen.
(D)
Extra large or jumbo eggs are not allowed.
(6)
Beans/Peas/Lentils.
(A)
All brands of dried beans, peas, or lentils are approved
in one-pound packages or bulk.
(B)
Mixed or seasoned beans, peas, or lentils are not allowed.
(7)
Peanut Butter.
(A)
Any brand of peanut butter in an 18-ounce container qualifies
if it contains no other ingredients such as jelly, marshmallows, or honey.
(B)
Low fat or lite peanut butter is not allowed.
(8)
Tuna.
(A)
Any domestic brand of chunked light tuna packed in water
in a six-ounce can is authorized. Tuna packaged in 3.25-ounce cans shall be
authorized only for the homeless food package.
(B)
Albacore and solid white tuna is not allowed.
(C)
Tuna packaged with other items such as crackers or relish
is not allowed.
(D)
Tuna packed in oil is not allowed.
(9)
Carrots.
(A)
All one-pound or two-pound cello bags of fresh, large carrots
without tops are allowed.
(B)
All 14-ounce to 16-ounce cans of sliced carrots are allowed.
(C)
Baby carrots and frozen carrots are not allowed.
(10)
Infant formula.
(A)
Infant formulas authorized for the WIC Program shall be
registered with the United States Food and Drug Administration as complying
with the legal definition of infant formula.
(B)
Infant formulas shall comply with calorie and iron content
prescribed by federal WIC regulations, except as provided by state agency
policy.
(C)
Infant formulas shall be approved by USDA for use in the
WIC Program.
(D)
The product form and marketing approach shall be consistent
with the promotion of good nutrition and education.
(E)
The state agency reserves the right to solicit rebates
for infant formulas from manufacturers through a competitive bid process.
The formulas selected shall be designated as the primary milk-base and soy-base
brands authorized for issuance by the WIC Program.
(11)
Infant cereal.
(A)
Infant cereals shall contain a minimum of 45 milligrams
of iron per 100 grams of dry cereal.
(B)
Infant cereal with added fruit, sugar, or other ingredients
shall not be authorized.
(C)
Infant cereal shall be dehydrated flakes in eight-ounce
or 16-ounce boxes.
(D)
The state agency reserves the right to solicit rebates
for infant cereals from manufacturers through a competitive bid process.
This agency hereby certifies that the adoption
has been reviewed by legal counsel and found to be a valid exercise of the
agency's legal authority.
Filed
with the Office of the Secretary of State on July 16, 2001.
TRD-200104075
Susan Steeg
General Counsel
Texas Department of Health
Effective date: August 5, 2001
Proposal publication date: February 2, 2001
For further information, please call: (512) 458-7236
Subchapter A. CONTROL OF COMMUNICABLE DISEASES
25 TAC §§97.1 - 97.4, 97.6
The Texas Department of Health (department) adopts amendments
to §§97.1 - 97.4 and 97.6 concerning the diseases in animals that
are notifiable by veterinarians, without changes to the proposed text as published
in the April 20, 2001, issue of the
Texas Register
(26 TexReg 2929), and therefore the sections will not be republished.
The sections will enable veterinarians to more clearly identify the conditions
and diseases that must be reported, define the minimal reportable information
on these conditions and diseases, and describe the procedures for reporting
to the department. Specifically, amendment §97.1 adds the term "animal"
to the definition of "case" and "contact," and new definitions for "research
facility" and "veterinarian." Minor changes in §97.2 define the term
patient to mean person or animal. Amendment §97.3 adds to the list of
reportable conditions the following clinically diagnosed or laboratory-confirmed
animal cases: anthrax, arboviral encephalitis,
Mycobacterium
tuberculosis
infection in animals other than those housed in research
facilities, plague, and psittacosis. It also adds a requirement that all non-negative
rabies tests performed on animals from Texas at laboratories located outside
of Texas be reported; all non-negative rabies tests performed in Texas be
reported by the laboratory conducting the testing; and, in addition to individual
case reports, any outbreak, exotic disease, or unusual group expression of
disease which may be of public health concern should be reported by the most
expeditious means. Amendment §97.3 also defines the minimal information
that shall be reported for each disease as species and number of animal(s)
affected, disease or condition, and the veterinarian's name and phone number.
Minor corrections were made in §97.3 and §97.4 by italicizing the
genus and species names for bacteria. Amendments §97.4 and §97.6
outline the procedures for reporting a notifiable condition in animals.
The following comments were received concerning the proposed rules. Following
each comment is the department's response and any resulting change(s).
Comment: Concerning §97.3(b)(1) one commenter stated the wording "any
outbreak, exotic disease, or unusual group expression of disease which may
be of public health concern" as being too vague. The suggestion was to change
the wording to "any outbreak of an animal disease foreign to Texas which is
of public health concern".
Response: The department disagrees. The wording "any outbreak, exotic disease,
or unusual group expression of disease which may be of public health concern"
is identical to the wording in the requirement for physicians to report notifiable
diseases (§97.3(a)(2)(B)). In both cases, the wording is intentionally
broad in order to cover the wide range of possible disease occurrences that
could adversely affect public health. Examples in which "animal disease foreign
to Texas" would be inadequate include: the occurrence of zoonotic diseases
which normally occur in one geographic area of the state but which appear
in a different area, thereby indicating possible environmental changes; congenital
malformations that may signal environmental contamination; a normally occurring
zoonotic disease manifesting itself at an usually high incidence rate or during
an unusual season or time of the year, thereby alerting public health officials
to a possible act of bioterrorism; instances in which unusual symptoms are
obvious to the veterinary practitioner, but the actual disease remains undiagnosed
(as happened in New York with West Nile virus); and the increased occurrence
of normally occurring zoonotic diseases as the result of changes in animal
husbandry practices (such as vaccinations).
The program certainly understands the practicing veterinarian's desire
for language that is more defined; however, attempts at a more definitive
expression have not been inclusive enough to meet the needs of public health
surveillance and early detection. Therefore, the program recommends keeping
the language as proposed. No change was made as a result of this comment.
Comment: Concerning a general comment of the public health significance
of domestic abuse and its relationship to animal abuse one commenter supported
a requirement to report cases of animal abuse.
Response: The relationship between animal abuse and violent behavior toward
humans is well documented. The program whole-heartedly acknowledges the benefits
of reporting animal cruelty if such reporting were to result in the prevention
of child abuse. However, it is not clear that the intent of the Health and
Safety Code Chapter 81 extends to the reporting of animal abuse. Health care
professionals in Texas are required to report suspected cases of child abuse
through statutory law (Family Code §261.101); therefore, a similar requirement
for veterinarians would logically require a statutory mandate rather than
administrative rules. No change was made as a result of this comment.
Comment: One commenter stated that veterinarians should be actively involved
in reporting diseases.
Response: The department agrees and no change was made as a result of this
comment.
Comment: Concerning §97.3(b)(1) and the language being too vague,
one commenter suggests that the language should read, "In addition to individual
case reports, any outbreak of an animal disease foreign to Texas which is
of public health concern." The commenter says this language would allow the
Texas Department of Health to gather the information it needs without unduly
burdening veterinarians by requiring them to report every single zoonotic
disease that they see in their practice.
Response: The wording "any outbreak, exotic disease, or unusual group expression
of disease which may be of public health concern" is identical to the wording
in the requirement for physicians to report notifiable diseases (§97.3(a)(2)(B)).
In both cases, the wording is intentionally broad in order to cover the wide
range of possible disease occurrences that could adversely affect public health.
Examples in which "animal disease foreign to Texas" would be inadequate include:
the occurrence of zoonotic diseases which normally occur in one geographic
area of the state but which appear in a different area, thereby indicating
possible environmental changes; congenital malformations that may signal environmental
contamination; a normally occurring zoonotic disease manifesting itself at
an usually high incidence rate or during an unusual season or time of the
year, thereby alerting public health officials to a possible act of bioterrorism;
instances in which unusual symptoms are obvious to the veterinary practitioner,
but the actual disease remains undiagnosed (as happened in New York with West
Nile virus); and the increased occurrence of normally occurring zoonotic diseases
as the result of changes in animal husbandry practices (such as vaccinations).
No change was made as a result of this comment.
The commenters were individuals who were generally in favor of the rules,
but expressed concerns and made recommendations.
The amendments are adopted under the Communicable Disease Prevention
and Control Act, Health and Safety Code, §81.004, which provides the
Board of Health with the authority to adopt rules concerning communicable
diseases; §81.041 which requires the board to identify reportable diseases; §81.044
which requires the board to prescribe the form and method of reporting communicable
diseases; and §12.001, which provides the Texas Board of Health with
the authority to adopt rules for the performance of every duty imposed by
law on the Texas Board of Health, the Texas Department of Health, and the
Commissioner of Health.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on July 16, 2001.
TRD-200104060
Susan Steeg
General Counsel
Texas Department of Health
Effective date: August 5, 2001
Proposal publication date: April 20, 2001
For further information, please call: (512) 458-7236
Subchapter T. LICENSURE OF TANNING FACILITIES
Chapter 31.
NUTRITION SERVICES
Chapter 31.
NUTRITION SERVICES
Subchapter B. FARMERS' MARKET NUTRITION PROGRAM
Subchapter C. SPECIAL SUPPLEMENTAL NUTRITION PROGRAM FOR WOMEN, INFANTS, AND CHILDREN (WIC)
Chapter 97.
COMMUNICABLE DISEASES
Chapter 229.
FOOD AND DRUG