10 APPEALS AND ADMINISTRATIVE REVIEWS

(1) Vendors may appeal any adverse actions taken by the Department, except as provided in paragraph (4)(a) of this section. (a) The Department shall provide the vendor with written notice of the adverse action fifteen (15) calendar days prior to the effective date of the action. The written notice shall contain: 1. the adverse action being taken; 2. the cause(s) for the action; 3. effective date of the action; 4. procedures to file for a hearing or administrative review; 5. time period allowed to request a hearing or administrative review; and 6. any other pertinent information. (b) The vendor’s request for a review (either a hearing or an administrative review) in order to appeal the actions of the WIC Program must be received within fifteen (15) calendar days from the date of receipt of the notice. (2) Adverse actions subject to hearings shall be in accordance with the Uniform Administrative Procedures Act, T.C.A. §4-5-101, et seq. (a) The vendor will be provided an opportunity to request a hearing for the following reason(s): 1. denial of authorization: based on the vendor selection criteria for competitive price or for minimum variety and quantity of authorized supplemental foods or for requiring the majority of annual total gross sales to be derived from staple foods or on a determination that the vendor is attempting to circumvent a sanction; 2. termination of an agreement for cause; 3. disqualification; or 4. imposition of a civil money penalty in lieu of disqualification. (b) The Department shall make arrangements for a hearing before an administrative judge from the Administrative Procedures Division of the Office of the Secretary of State. The vendor shall also be given the following: 1. written notification of the adverse action, the procedures to follow to obtain a full administrative review, and the cause(s) for and the effective date of the action (When a vendor is disqualified due in whole or in part to violations in 1200-15-2-.08(6) Subparts (a)-(d), such notification must include the following statement: “This disqualification from WIC may result in disqualification as a retailer in the Food Stamp Program. Such disqualification is not subject to administrative or judicial review under the Food Stamp Program.”); 2. the opportunity to appeal the adverse action within fifteen (15) calendar days of receipt of the notification of adverse action; 3. adequate advance notice of the time and place of the hearing to provide sufficient time to prepare for the hearing; 4. the opportunity to present its case and at least one opportunity to reschedule the hearing date upon specific request; 5. the opportunity to cross-examine adverse witnesses (When necessary to protect the identity of WIC Program investigators, such examination may be conducted behind a protective screen or other device.); 6. the opportunity to be represented by counsel; 7. the opportunity to examine prior to the review the evidence upon which the Program’s action is based; 8. an impartial decision-maker (administrative judge), whose determination is based solely on whether the Program has correctly applied Federal and State statutes, regulations, policies, and procedures governing the Program, according to the evidence presented at the hearing; and 9. written notification of the review decision, including the basis for the decision, within ninety (90) days from the date of receipt of a vendor’s request for a hearing. (These timeframes are only administrative requirements and do not provide a basis for overturning the Program’s adverse action, if a decision is not made within the specified timeframe.) (3) Adverse actions subject to administrative review in accordance with 7 CFR 246.18(a)(1)(ii) are as follows. (a) The vendor will be provided an opportunity to request an administrative review for the following reason(s): 1. denial of authorization: based on the vendor selection criteria for business integrity or for a current Food Stamp Program disqualification or civil money penalty for hardship; 2. denial of authorization: based on a Program-established vendor selection criterion if the basis of the denial is a WIC vendor sanction or a Food Stamp Program withdrawal of authorization or disqualification; 3. termination of an agreement because of a change in ownership or location or cessation of operations; 4. disqualification based on a trafficking conviction; 5. disqualification based on the imposition of a Food Stamp Program civil money penalty for hardship; or 6. disqualification or a civil money penalty imposed in lieu of disqualification based on a mandatory sanction imposed by another WIC State Program. (b) The Department shall conduct all administrative reviews pursuant to 7 CFR 246.18(c). The vendor shall also be given the following: 1. written notification of the adverse action, the procedures to follow to obtain an administrative review, the cause(s) for and the effective date of the action, and an opportunity to provide a written response; 2. a decision-maker, appointed by the Commissioner, who is someone other than the person who rendered the initial decision on the action and whose determination is based solely on whether the Program has correctly applied Federal and State statutes, regulations, policies, and procedures governing the Program, according to the information provided to the vendor concerning the cause(s) for the adverse action and the vendor’s response; and 3. written notification of the review decision, including the basis for the decision, within ninety (90) days of the date of receipt of the request for an administrative review. (These timeframes are only administrative requirements and do not provide a basis for overturning the Program’s adverse action if a decision is not made within the specified timeframe.) (4) Adverse actions not subject to administrative reviews. (a) The Department will not provide administrative reviews to vendors that appeal the following adverse actions: 1. the validity or appropriateness of the Program’s vendor limiting or selection criteria; 2. the validity or appropriateness of the Program’s participant access criteria and the Program’s participant access determinations; 3. the Program’s determination whether a vendor had an effective policy and program in effect to prevent trafficking and that the ownership of the vendor was not aware of, did not approve of, and was not involved in the conduct of the violation; 4. the expiration of the vendor’s agreement; 5. disputes regarding food instrument payments and vendor claims (other than the opportunity to justify or correct a vendor overcharge or other error); or 6. disqualification of a vendor as a result of disqualification from the Food Stamp Program. (5) Effective date of adverse actions against vendors. (a) The Department will make denials of authorization and permanent disqualification imposed for violations contained in 1200-15-2-.08(6)(a) of this Chapter effective on the date of receipt of the notice of adverse action. (b) The Department will make all other adverse actions effective after fifteen (15) calendar days after the date of the notice of adverse action is received by the vendor, unless a request for a hearing or administrative review is received from the vendor within fifteen (15) calendar days. (c) The Department will make the adverse action effective the date the vendor receives the final determination on actions which were subject to a hearing or administrative review. (6) Continuing responsibilities. Appealing an adverse action does not relieve a vendor that is permitted to continue program operations while its’ appeal is in process from the responsibility of continued compliance with the terms of the written agreement with the Program. (7) The Department shall accept the decisions rendered under the hearing and administrative review as the final Program action. If the adverse action under review has not already taken effect, the Program will make the action effective on the date of receipt of the review decision by the vendor. (8) Judicial review. If the review decision upholds the adverse action against the vendor, the Department will inform the vendor that it may be able to pursue judicial review of the decision in the Chancery Court for Davidson County, Tennessee. Authority: T.C.A. §§4-5-202, 4-5-204, and 68-1-106. Administrative History: Original rule filed February 8, 2002; effective April 24, 2002. Amendment filed July 1, 2004; effective September 14, 2004.