| Date: | 08/11/2009 |
|---|---|
| Organization: | Division of Administrative Law Appeals |
| Docket Number: | PH-07-539 |
On April 9, 2008, pursuant to 7 CFR 246.12(g)(3)(i), the Petitioner, Department of Public Health-WIC Program (DPH), issued a Notice of Termination of WIC Vendor Agreement and Disqualification from the WIC Program for the period of one year to the Respondents, Deli Grocery, Shilpi Begum, owner, and Enamul Malik, manager, (WIC Vendor No. 5812). (Exhibit 1). The Respondents filed a timely appeal and request for hearing on April 30, 2008. (Exhibit 2). A hearing was held on August 22, 2008 at the offices of the Division of Administrative Law Appeals (DALA), 98 North Washington Street, Boston, MA, pursuant to G.L. 30A, 801 CMR 1.02 et seq., the Informal Rules, and interagency agreement.
At the hearing, seven (7) exhibits were marked. The Petitioner presented the testimony of: Mary Blocksidge, the DPH WIC Program Director; the undercover compliance buyer for the WIC Program, whose identity was protected by a screen during testimony; and, Lisa Viveiros, Fall River WIC Program Assistant. The Respondent, Enamul Malik, manager of Deli Grocery, provided testimony on behalf of Deli Grocery. Both parties stated their arguments for the record. One (1) tape was made of the proceedings.
Based upon the testimony and documents submitted during the hearing in the above-entitled matter, I hereby render the following findings of fact:
1. The DPH is responsible for administering the Massachusetts WIC Program and enforcing the laws, rules and regulations pertaining to said program. (Testimony).
2. The WIC Program is a nutrition and education program, whose purpose is to provide food supplements and nutrition information to eligible low-income pregnant women, breastfeeding mothers, infants and children up to five (5) years of age. The WIC Program was created by the Federal Child Nutrition Act of 1996, and is found at 42 U.S.C. s. 1771 et. seq. Regulations governing the WIC Program are found at 7 CFR 246 et. seq. The program is administered on a federal level by the United States Department of Agriculture, and on the state level, by the DPH. (Id.).
3. Vendors participating in the WIC Program are required to stock mandatory minimum inventory of approved WIC products. (Exhibits 1 and 1A).
4. Persons eligible for participation in the WIC program are issued WIC checks [vouchers/prescriptions] which can be used to purchase prescribed WIC products at stores authorized to redeem them. (Id.).
5. These checks can be redeemed only at authorized WIC vendors' stores. A store seeking to become an authorized WIC vendor must apply to the DPH to participate. (Exhibit 6).
6. The WIC Vendor Application is a written document that specifically states that the store owner will be "bound by the WIC Program regulations and policies" including:
…accepting responsibility on behalf of the store and its owner(s),
manager(s), and employees including new, part-time, paid or unpaid employees for violations of WIC procedures committed.
(Id.).
7. Every WIC vendor, including the Respondent, is provided with written training materials regarding the proper way to process WIC checks. Additional training is available at other times upon request. (Testimony).
8. The WIC Program is required to conduct vendor monitoring in order to prevent waste and/or fraud that may result from the improper processing of WIC checks. To this end, the WIC program has employed the services of an undercover compliance buyer who visits random WIC vendors and makes purchases with designated WIC checks. (Testimony and 7 CFR 246.12[j]).
9. The Respondent, Deli Grocery, located at 340 Oak Grove Avenue, Fall River, MA, includes: Shilpi Belgum, store owner, and Enamul Malik, store manager. (Testimony).
10. Deli Grocery applied to be a WIC vendor on or about April 26, 2006.
(Exhibit 6).
11. The Massachusetts WIC Program Vendor Agreement for fiscal year 2006 (Agreement) includes, at pages 7-12, the WIC Program Sanction Policy. Appendix A of the Agreement (pages 21-27) contains a listing of violations and the number of sanction points applicable to different classes of violations. Sanction points are charged against a vendor if violations of the Agreement are found. (Exhibit 1A).
12. Either the vendor or the state may terminate the Agreement for cause upon fifteen (15) days written notice. (Id.).
13. Enamul Malik received training concerning the sanction policy on or about October 10, 2007. (Exhibit 1B).
14. The compliance buyer made vendor monitoring visits to Deli Grocery on: February 11, 2008 and February 26, 2008. (Exhibits 2 and 3).
15. Following each of the visits on the dates specified above, the compliance buyer prepared a written report that included information about her observations of the store personnel and inventory, what, if any checks she had spent at the vendor's store, what, if any, items she purchased with those checks, whether or not the amount of her actual purchase was written on the WIC check in her presence and prior to the clerk asking her to sign the check, whether items she purchased had prices affixed to them, a description of the check-out person at the vendor's store, and other comments and information regarding what she did and observed while at the vendor's store on each date. (Id.).
16. At the time of the 1:43 P.M. February 11, 2008 monitoring visit to Deli Grocery, the compliance buyer used two WIC checks (one Type 156A-1 and one Type 156A-2). Using the check Type 156A-1, with a serial number ending with "38", the compliance buyer purchased: one gallon of Byrne Dairy whole milk and two 15-ounce boxes of Quaker Life Cereal. The prices of the items were not posted in the store.
Using the Type 156A-2 check, with a serial number ending in "39", the compliance buyer purchased another gallon of Byrne Dairy whole milk and a 16-ounce bag of Halstead Pinto beans. The prices of these items were not posted in the store.
The compliance buyer attempted to purchase a package of McClary's Singles, individually wrapped cheese. The cashier would not allow her to purchase this item with the WIC check. The compliance buyer had chosen this type of cheese because it was the only cheese available in the store. The store had no WIC approved cheese and no WIC approved juice.
The cashier was described in the Compliance Purchase Report as a middle-aged, Middle-Eastern male approximately 5'9" tall with a medium build and brown hair. He wore glasses and a baseball cap. (Exhibit 2).
17. During the February 26, 2008 12:21 P.M. monitoring visit to the same market, the compliance buyer spent another two WIC checks (one Type 156A-1 and one Type 156A-2). Using check Type 156A-1, with a serial number ending in "42", the compliance buyer purchased: one gallon of Byrne Dairy whole milk and two 14-ounce boxes of General Mills Cheerios Total cereal. The prices were not posted on or near these items.
With the Type 156A-2 check, with a serial number ending "43", the compliance buyer purchased: another gallon of Byrne Dairy whole milk; eight ounces of Tropical cheddar cheese and a 16-ounce bag of Jack Rabbit small red beans. These items had no prices on or near them.
The compliance buyer asked the cashier if there were any WIC approved juice products in the store. She was told that there were no WIC juice products available. The cashier did not ring up any grocery items. She had the compliance buyer sign the WIC checks without entering the purchase amounts. The cashier was described as a Middle-Eastern female in her mid to late twenties with a medium build and black hair. (Exhibit
3).
18. On March 20, 2008, DPH issued a formal warning to the Deli Grocery and notified the store that it had incurred sanction points for not being in compliance on February 11 and February 26, 2008. The Respondent was informed that DPH would continue to monitor its compliance with the WIC Program and that failure to stock and maintain the WIC mandatory minimum inventory would be grounds for disqualification from the WIC Program. (Exhibit 4).
19. Fall River WIC Program Assistant Lisa Viveiros went to Deli Grocery on April 2, 2008 to follow-up on the compliance buyer's reports. She recorded several shortages in the store's mandatory minimum inventory. These were: 4 types of WIC cereal in 12-ounce boxes out of the required 7 types; 3 half gallons of whole milk out of the required 4 half gallons; 12 cans of evaporated milk out of the required 19 cans; 2 dozen eggs out of the required 8 dozen; 10 cans of Nestle Good Start Supreme DHA & ARA 13 oz. concentrate out of the required 24 cans; and, 7 boxes of Beechnut, Gerber or Heinz Iron-fortified infant cereal out the mandatory 9 boxes.
In addition to the inventory shortages, the Respondent was completely out of the following required items:
- liquid concentrate juice
- lowfat or nonfat milk
- Nestle Good Start Supreme Soy DHA & ARA
- fresh carrots
(Exhibit 5).
20. The failure to stock mandatory minimum inventory of WIC approved products, the failure to comply with federal, state and local laws and regulations pertaining to the disclosure of prices for any items offered for sale, and the failure to fill in the amount of a purchase in the presence of the authorized WIC shopper before the shopper has countersigned the WIC check, are all Class IV violations that warrant ten (10) sanction points each. (Exhibits 1, 1A and 5).
21. The WIC Program determined that the disqualification of Deli Grocery in Fall River, MA will not have an unduly adverse impact on WIC participants. (Exhibit
7).
22. On April 9, 2008 DPH terminated the Respondent's Vendor Agreement and disqualified Deli Grocery and its owner and manager managers from participation in the WIC Program for a period of one (1) year. The DPH charged the Respondent with the following violations and sanction points:
Class IV violation- Failure to stock mandatory minimum
inventory of approved WIC products as required by the WIC
Vendor Agreement on February 11, February 26 and
April 2, 2008: 30 Points
Class IV violation- Failure to comply with Federal, State and Local
laws and regulations pertaining to the disclosure of prices for any
items offered for sale in violation of G.L. c. 93A s. 2 as defined in
940 CMR 3.13(1)(a) which states: "it is an unfair and deceptive
act or practice for any person subject to 940 CMR 3.13 to fail to
affix to any goods offered for sale to consumers the price at which
the goods are to be sold" on February 11 and February 26, 2008:
20 points
Class IV violation- Failing to fill in the amount of purchase in the
presence of the authorized WIC shopper before the authorized
WIC shopper has countersigned the WIC check on
February 26, 2008: 10 points.
TOTAL SANCTION SCORE: 60 POINTS
(Exhibit 1).
23. According to the WIC Vendor Agreement, a vendor may be disqualified for one year for a sanction score of 20 or more points. Moreover, the WIC Vendor Agreement expressly provides that failure to stock and maintain the WIC mandatory minimum in required quantities after one warning shall be grounds for disqualification. (Id. and Exhibit 1A).
The DPH has met its burden of proving by a preponderance of the evidence that the statutory and regulatory Class IV violations set forth in the April 9, 2008 Notice of Termination of the WIC Vendor Agreement and Disqualification From the WIC Program took place on February 11, February 26 and April 2, 2008.
The Petitioner has put forth a strong and credible case both in documentary and testimonial evidence which the Respondent has failed to refute. In rendering this conclusion, I have credited the testimony of the compliance buyer who systematically recorded observations of the store inventory or lack thereof, and any items purchased, all within a very short period of time after each monitoring visit. The individual appeared to be a methodical professional who demonstrated no bias or other hidden agenda against the Respondent or any other motive to be less than truthful. The Respondent did not contest the fact, but rather asked for a reprieve, promising to comply in the future. Unfortunately, this promise is too little too late. The Respondent had already received a letter of warning in March 2008 which went unheeded. The request for leniency cannot halt the disqualification process. Neither DPH nor DALA have any discretion but to uphold the controlling regulations in this case.
The Respondent raised neither any legitimate legal issues concerning the alleged lack of due process in the Petitioner's management of this case, nor, any regulatory or legal violations by the Petitioner that would negate the Findings of Fact set forth herein or those actions taken by the Petitioner in pursuit of the sanctions to be imposed upon the Respondents.
Accordingly, the Vendor Agreement for Deli Grocery is terminated, and, there is a disqualification from participating in the WIC Program for one year.
So ordered.
Division of Administrative Law Appeals,
BY:
/s/
__________________________________
Judithann Burke
Administrative Magistrate
DATED: 8/11/09
