Chapter 06. Fair Hearing Appeals under the Special Supplemental Food Program for Women, Infants, and Children (WIC)

“Appellant” means an individual, an applicant agency, a food vendor, or delegate agency who desires to participate in the WIC Program, who requests a fair hearing for the reasons specified in Regulation .02, of this chapter.

“Applicant agency” means a public or private, non-profit health or welfare agency providing or contracting to provide health services, which has filed with the Department all the information required by the Department to apply to participate in the WIC Program.

“Delegate agency” means a local agency or organization which, pursuant to contractual agreements with the Department, has accepted responsibilities under the WIC Program as defined by federal program regulations.

“Department” means the Maryland Department of Health.

“Food vendor” means an individual or organization licensed to sell food products, who has, or has applied to have, a contractual agreement with the Department or delegate agency to supply approved foods to program recipients.

“Hearing officer” means an impartial official designated by the Secretary of Health to conduct and make administrative decisions in fair hearings. The hearing officer may not have had any prior connection with the action which is the subject of the fair hearing.

“Participant” means pregnant women, breastfeeding women, post-partum women, infants, and children who are receiving supplemental foods or food instruments (benefits) under the WIC Program, and the breastfed infants of participant breastfeeding women.

“State Agency” means that unit of the Maryland Department of Health which is responsible for the administration and operation of the WIC Program in Maryland.

“WIC” means the Special Supplemental Food Program for Women, Infants, and Children, a federally funded program authorized under an amendment to the Child Nutrition Act of 1966 (PL 94-105) to provide supplemental nutritious food as an adjunct to good health care during critical times of growth and development to prevent the occurrence of health problems.

An individual's application for participation in the WIC Program is denied by the Department or delegate agency;

An eligible participant is required to pay the cash value of improperly issued benefits, or is denied benefits, suspended or terminated from the WIC Program by the Department or delegate agency;

An applicant agency, delegate agency, or food vendor's:

Written notification of the right to obtain a fair hearing shall be given by the Department or delegate agency to each appellant at each time of application.

Written notification of the right to obtain a fair hearing, and the method of obtaining the hearing, shall be given by the Department or delegate agency whenever it notifies an appellant that it intends to recover the cash value of the improperly issued benefits or to deny, suspend, or terminate participation in the WIC Program. If benefits or eligibility for an individual or food vendor are to be denied, suspended, or terminated, written notice shall be mailed or given at least 15 days before the effective date. In the case of a delegate agency, the notice shall be provided 60 days in advance of the effective date. This notification is not required at the expiration of a certification period.

The notification specified in §B, of this regulation, shall give the appellant the following information:

The Department shall promptly acknowledge a request for a fair hearing and conduct it within 3 weeks from the date the Department received the request for a hearing.

The appellant shall be given notice, in writing, at least 10 days before the date of the fair hearing.

The notification specified in §B, of this chapter, shall include the following information:

It has been withdrawn in writing by the appellant or his representative;

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

The appellant or his representative does not respond within 10 days to a Department letter asking whether he wishes to withdraw his request for a fair hearing;

The request is not made within the time limits specified in Regulation .07, of this chapter; or

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

The Department shall prepare a hearing summary containing pertinent information respecting the specific action or inaction which is the basis for the appeal. The summary shall be forwarded to the appellant or his representative at least 6 days before the hearing date, and shall include notification that the appellant or his representative may examine documents and records to be used at the hearing at the office of the hearing officer, at a reasonable time before the date of hearing.

The appellant and the Department may request the names of all witnesses that the other party intends to call at the fair hearing.

The fair hearing procedures may not be unduly complex or legalistic. The hearing official shall administer oaths or affirmations as required by the State. The appellant, the Department, and the delegate agency shall have the opportunity to present witnesses, documentary evidence, and oral and written argument, and to cross-examine all adverse witnesses. The appellant will have the opportunity to advance arguments without undue interference.

If the appellant wishes to call as witnesses employees of the Department or delegate agency whose action or inaction is being contested by the appellant, or whose testimony, in the judgment of the hearing officer, is relevant to the issues under consideration, the hearing officer shall require their presence at the fair hearing, provided that, when the appellant has knowledge of the names or other identifying description of these employees before the fair hearing, he shall supply the hearing officer with the names or other identifying descriptions at least 3 days before the fair hearing.

If the Department or delegate agency introduces documents as evidence, the appellant shall have the opportunity to examine persons who prepared the documents and to examine the case record or special investigation file for the purpose of discovering information favorable to his case.

When the hearing involves medical issues, an additional medical assessment of the appellant's condition shall be obtained and made part of the record if either the hearing officer or the appellant considers it necessary. This additional medical assessment shall be made by a person satisfactory to the appellant other than the person or persons who made the original medical determination, and shall be obtained at the Department's expense.

A verbatim recording of the fair hearing shall be made. One transcribed copy of the recording shall be supplied to the appellant, at no cost, if the appellant takes a further appeal. The recording, together with all exhibits and papers admitted into evidence, shall constitute the exclusive record for decision. Nonrecorded or confidential information which the appellant does not have an opportunity to hear or see may not be made a part of the hearing record. The written record of the hearing shall be preserved for a period of 3 years and shall be available for examination by the person or his representative at any reasonable time or place during this period.

The recording and copies of all exhibits and papers shall remain in the custody of the hearing officer for at least 3 years, or until all litigation involving the decision is terminated.

The hearing officer shall prepare a written summary of findings and conclusions based exclusively on the record, and shall state the policies, regulations, or laws upon which the hearing officer's decision is based. The hearing officer's decision shall become a part of the record.

A copy of the findings, conclusions, and decision shall be forwarded to the appellant or his representative no later than 45 days after the date of receipt of the initial request for a fair hearing; except that, if the date of the fair hearing is postponed at the appellant's request, the length of the postponement may not be counted as part of the 45-day period. The hearing officer further shall provide written notice to the appellant or his representative that if he is not satisfied with the decision, he may seek administrative review as provided in Health-General Article, §2-207, Annotated Code of Maryland, and judicial review as provided in Article 41, §225, Annotated Code of Maryland, or any other provision of law.

The decision of the hearing officer shall be final and binding upon the Department and the delegate agency, and shall be implemented immediately unless otherwise specifically indicated in the decision, or unless the appellant takes an appeal as provided in Health-General Article, §2-207, Annotated Code of Maryland. However, if the decision being appealed is in favor of a delegate agency seeking to recover the cash value of improperly issued benefits, the delegate agency shall resume its claim collection efforts during pendency of the appeal. When the decision requires action by the delegate agency, that agency shall notify the Department of compliance with the decision.

The hearing officer shall maintain a copy of the decision, with the name of the appellant and witnesses deleted, in a reference file or hearing decisions that will be accessible to the public. Copies of all decisions, either in full text or in summary form, shall be forwarded to the delegate agency and any agency or physician with which it has contracted to fulfill its program responsibilities and is involved in this fair hearing.

Whenever an individual, applicant agency, delegate agency, or food vendor is notified of a proposed action as provided in Regulation .03, of this chapter, the proposed action may not be taken unless at least one of the following occurs:

Whenever an eligible participant is notified during a certification period that benefits are to be denied, suspended, or terminated, those benefits will continue to be provided if the participant requests a fair hearing within the 15 day advance notice period provided by Regulation .03B, of this chapter. Those benefits will continue until one of the conditions specified in Regulation .14A, of this chapter, occurs.

Whenever an eligible participating food vendor is notified that participation is to be denied, suspended, terminated, or affected by any other adverse action, the food vendor shall be allowed to continue to participate if the food vendor requests a fair hearing at least 10 days before the effective date of the proposed adverse action. Participation shall continue until one of the conditions specified in §A, of this chapter, occurs.

Applicants who are denied benefits at initial certification or at subsequent certifications may appeal the denial but may not receive benefits while awaiting a hearing.

An applicant agency or food vendor which is denied participation at time of application may appeal the denial but may not participate while awaiting a hearing.

Whenever an eligible participant, participating delegate agency, or food vendor requests a fair hearing following the expiration of the time period as provided in §§B and C, of this regulation, the hearing officer, in his discretion, may provide an additional period during which time a request for a fair hearing shall result in continuation of benefits or participation until one of the conditions specified in §A, of this regulation, occurs.

The adverse action affecting a participating delegate agency shall be postponed until a hearing decision is reached.

Appealing an action does not relieve a delegate agency or food vendor permitted to continue in the program while its appeal is in process from the responsibility of continued compliance with the terms of any written agreement or contract with the State or local agency.