Code Section Group

Health and Safety Code - HSC

DIVISION 106. PERSONAL HEALTH CARE (INCLUDING MATERNAL, CHILD, AND ADOLESCENT) [123100 - 125850]

  ( Division 106 added by Stats. 1995, Ch. 415, Sec. 8. )

PART 2. MATERNAL, CHILD, AND ADOLESCENT HEALTH [123225 - 124250]

  ( Part 2 added by Stats. 1995, Ch. 415, Sec. 8. )

CHAPTER 1. General Provisions [123225 - 123371]

  ( Chapter 1 added by Stats. 1995, Ch. 415, Sec. 8. )

ARTICLE 2. Women, Infants, and Children’s Nutrition [123275 - 123355]
  ( Article 2 added by Stats. 1995, Ch. 415, Sec. 8. )

123275.
  

The Legislature finds that medical, educational and psychological evidence increasingly points to adequate nutrition as a determinant not only of good physical health but also of full intellectual development and educational achievement, with adequate nutrition in the earliest months and years being particularly important for full development of the child’s mind and body, that problems of child nutrition cut across income lines and can result not only from low income but also from parental ignorance or neglect and that there is a need for a statewide child nutrition program that has the potential of reaching all pregnant women and mothers of infants.

(Added by Stats. 1995, Ch. 415, Sec. 8. Effective January 1, 1996.)

123279.
  

(a)  It is the intent of the Legislature in adding this section to authorize the establishment of a program designed to implement the federal WIC Farmers’ Market Nutrition Act of 1992 (Public Law 102-314), which is designed to accomplish the following:

(1)  Provide resources to persons who are nutritionally at risk, in the form of fresh, high-quality agricultural products from certified farmers’ markets.

(2)  Expand the awareness and use of certified farmers’ markets and increase sales at those markets.

(b)  The department may establish a program designed to implement the federal WIC Farmers Market Nutrition Act of 1992.

(c)  If the program is established, the department shall develop criteria to permit any producer authorized by the department to participate in the program to sell fresh nutritious foods to recipients in exchange for nutrition coupons.

(d)  If the program is established, the department shall authorize local agencies to distribute nutrition coupons to all recipients, as defined by subdivision (c) of Section 123285 of the Health and Safety Code.

(e)  If the program is established, the department shall design the nutrition coupon issuance process to ensure that nutrition coupons are bearer-only, nonnegotiable, and nontransferable by the recipient and that they may be redeemed by recipients only to purchase fresh produce and redeemed for reimbursement only by authorized producers.

(f)  It is the intent of the Legislature that the program established by this section to implement the federal WIC Farmers’ Market Nutrition Act of 1992 (Public Law 102-314) be funded 70 percent by federal funds and 30 percent by private or other funds, as specified by the federal act.

(Added by Stats. 1997, Ch. 294, Sec. 26. Effective August 18, 1997.)

123280.
  

(a)  The department may conduct a statewide program for providing nutritional food supplements to low-income pregnant women, low-income postpartum and lactating women, and low-income infants and children under five years of age, who have been determined to be at nutritional risk by a health professional, based on criteria established by the department. Any program established pursuant to this section shall do all of the following:

(1)  Comply with all the requirements of this article.

(2)  Be conducted only if a special project is authorized by inclusion in the Budget Act or notification is provided to the Legislature pursuant to Section 28 of the Budget Act, and federal funds are appropriated therefor.

(3)  Be known as the California Special Supplemental Nutrition Program for Women, Infants, and Children (WIC Program).

(b)  The department shall administer this article and shall adopt minimum standards and regulations as necessary.

(c) In order to be in conformity with federal law and to remain in compliance with federal funding, the department shall adopt all mandatory requirements and guidelines set forth in federal law and federal regulation for the federal Special Supplemental Nutrition Program for the WIC program, including, but not limited to, the Child Nutrition Act of 1966, and the amendments thereto (Chapter 13A (commencing with Section 1786) of Title 42 of the United States Code), Part 246 of Title 7 of the Code of Federal Regulations, and federal memoranda and guidance letters clarifying and interpreting those laws and regulations as the requirements for the WIC Program. In adopting the federal mandatory requirements and guidelines, the department shall not be subject to Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code. The department may adopt these requirements and guidelines by bulletin or similar instruction.

(Amended by Stats. 2012, Ch. 787, Sec. 2. (AB 2322) Effective September 29, 2012.)

123285.
  

As used in this article, the following definitions shall apply:

(a) “Health professional” means a physician and surgeon, registered nurse, nutritionist, dietitian, or state or local medically trained health official, who is competent to professionally evaluate nutritional need and to authorize supplemental foods, as determined by the state department.

(b) “Low income” means an income of not more than 185 percent of the poverty level as determined by the federal poverty income guidelines promulgated by the United States Department of Health and Human Services.

(c) “Recipient” means low-income pregnant women, low-income post partum and lactating women, and low-income infants and children under five years of age, who are determined to be at nutritional risk by a health professional, based on criteria established by the state department.

(d) “Nutrition coupon” means a check that is limited as to value, food type, and food quantity and that has a limited period of validity.

(e) “WIC Program” means the California Special Supplemental Nutrition Program for Women, Infants, and Children.

(Amended by Stats. 2012, Ch. 787, Sec. 3. (AB 2322) Effective September 29, 2012.)

123290.
  

The department, under any program established pursuant to this article, shall do all of the following:

(a)  Establish guidelines to determine resource allocation giving consideration to an area’s nutritional need.

(b)  Designate the counties within which a program will be conducted, with the approval of those counties.

(c)  Establish the minimum nutritional requirements for recipients.

(d)  Designate specific supplemental foods to meet the minimum nutritional requirements for recipients.

(e)  Develop and maintain a system for the delivery of supplemental foods to recipients through the distribution of supplemental foods designated in subdivision (d) and nutrition coupons when other methods of delivery are impractical.

(f)  (1)  Develop and coordinate a smoking cessation component of program operations, with consideration of local agency plans, needs, and available tobacco education resources.

(2)  In consultation with the directors of local agencies and with other individuals with expertise in the field of smoking cessation, identify and promulgate a strategy for smoking cessation in the state plan of operation and administration of the WIC program, including, but not limited to all of the following:

(A)  Designating an agency staff member to coordinate smoking cessation efforts.

(B)  Providing training on smoking cessation and tobacco education to designated staff members of local agencies who are responsible for counseling participants in the program.

(3)  Develop and implement procedures to ensure that tobacco use screening and education, including, but not limited to, smoking cessation counseling and referrals where appropriate, are offered to all participants.

(g)  (1)  Establish guidelines and criteria to be used by participating local agencies, when determining recipient eligibility, that require, in addition to a recipient being a low-income pregnant woman, or a low-income postpartum and lactating woman, or a low-income infant or child under five years of age, that the recipient be at nutritional risk.

(2)  A health professional on the staff of the local agency shall determine if a person is at nutritional risk through a medical or nutritional assessment. This determination may be based on referral data submitted by a health professional not on the staff of the local agency. The person’s height or length and weight shall be measured, and a hematological test for anemia, such as a hemoglobin or hematocrit test, shall be performed. However, the tests shall not be required for infants under six months of age. In addition, the blood test shall not be required for children who were determined to be within the normal range at their last program certification. However, the blood test shall be performed on the children at least once a year. A breastfeeding woman may be certified if the child she is breastfeeding is determined to be at nutritional risk and the woman meets the income eligibility criteria.

(h)  Operate the program as an adjunct to existing health services.

(i)  Seek federal funds to carry out this article.

(Added by Stats. 1995, Ch. 415, Sec. 8. Effective January 1, 1996.)

123295.
  

Nutrition coupons in an amount sufficient to meet the nutritional needs of a recipient for one month shall be granted to a recipient by facilities and persons referred to in subdivision (g) of Section 123290 upon the written finding of nutritional need by the recipient’s physician or other health professional.

(Amended by Stats. 1997, Ch. 97, Sec. 8. Effective July 21, 1997.)

123300.
  

The department may, under any program established pursuant to this article, investigate the feasibility of contracting with one or more banks in the area served by the program for the redemption of nutrition coupons.

(Added by Stats. 1995, Ch. 415, Sec. 8. Effective January 1, 1996.)

123302.
  

(a) (1) Notwithstanding any other law, the department may design, implement, and fund an electronic benefits transfer (EBT) system for the California Special Supplemental Food Program for Women, Infants, and Children. Sections 10066, 10067, and 10068 of, and subdivision (m) of Section 10072 of, the Welfare and Institutions Code, shall apply to the administration of this section.

(2) The department shall not implement any EBT system authorized by this section until the department completes a feasibility study, and funding for the system is provided in the annual Budget Act.

(b) The department shall seek the advice of the Electronic Benefits Transfer Committee, created by Section 10067 of the Welfare and Institutions Code, in implementing this section, and shall obtain the approval of the United States Department of Agriculture, which is the federal governing agency, prior to the establishment of any EBT system.

(c) The department shall develop a plan to determine the feasibility of implementing an EBT system for the California Special Supplemental Food Program for Women, Infants, and Children by January 1, 2003, and shall report its findings to the Legislature by July 1, 2003.

(Amended by Stats. 2014, Ch. 720, Sec. 2. (AB 1614) Effective January 1, 2015.)

123305.
  

The department, under any program established pursuant to this article, may collect data to determine the need for and the continuation of a supplemental nutritional program for recipients under this article.

(Added by Stats. 1995, Ch. 415, Sec. 8. Effective January 1, 1996.)

123310.
  

The department, under any program established pursuant to this article, shall authorize retail food vendors, by written agreement, to accept nutrition coupons and reimbursement according to the system developed by the department. The department shall authorize an appropriate number and distribution of food vendors in order to ensure adequate participant convenience and access and to ensure that state or local officials can effectively manage review of authorized food vendors in their jurisdictions. The department shall establish criteria to limit the number of retail food vendors with which the department enters into agreements. The criteria, at a minimum, shall include:

(a)  The prices the vendor charges for foods in relation to other vendors in its peer group. For purposes of this subdivision, “peer group” means a group of vendors with similar characteristics that may include, but shall not be limited to, any or all of the following:

(1)  Geographic location of the store.

(2)  Store size.

(3)  Type of store.

(4)  Number of cash registers.

(5)  Sales volume relating to any program established pursuant to this article.

(6)  Gross sales volume.

(7)  Inventory.

(8)  Other vendor characteristics established by the department.

(b)  The ability of the department to ensure that authorized supplemental foods will be provided through in-store compliance purchases.

(c)  The adequacy of the shelf stock of the authorized supplemental foods.

(d)  Past performance of the vendor in compliance with this article and with CalFresh.

(Amended by Stats. 2011, Ch. 227, Sec. 13. (AB 1400) Effective January 1, 2012.)

123312.
  

(a) The department shall specify the criteria the department shall use and the actions the department shall take when initiating a moratorium on new WIC Program retail food vendor location applications. Notwithstanding any other provision of law, the department may, without taking regulatory action pursuant to Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code, implement, interpret, or make specific this section by means of a vendor bulletin when initiating a moratorium on new WIC Program retail food vendor location applications.

(b) A vendor bulletin initiating a moratorium, at a minimum, shall include all of the following:

(1) The reason for, and the maximum duration of, a moratorium.

(2) An action plan with specific steps the department plans to take by the identified end date of the moratorium that addresses the reason or need for the moratorium. The department shall make this information, including any changes to the action plan, available to the public by posting this information on the department’s Internet Web site and through other forms of electronic communication.

(3) Exceptions for processing applications during the moratorium period, including the processing of a retail food vendor’s application to add a specific store location to a current master vendor agreement if the department received the vendor’s completed application for that store location prior to the effective date of the moratorium.

(c) The department shall provide retail food vendors with a minimum of 30 days’ notice prior to the effective date of, or extension of, a moratorium.

(d) The department shall seek any federal approvals necessary to implement this section.

(e) Moratoriums required by federal directive shall not be subject to the requirements of this section.

(Added by Stats. 2012, Ch. 787, Sec. 4. (AB 2322) Effective September 29, 2012.)

123315.
  

(a)  The department, under any program established pursuant to this article, shall ensure that, at a minimum, the authorized vendor shall do all of the following:

(1)  Redeem nutrition coupons only from persons bearing appropriate identification provided by the department.

(2)  Redeem nutrition coupons for only those foods specified thereon.

(3)  Redeem nutrition coupons at an amount that is the same as, or lesser than, that charged other customers for identical foods.

(4)  Redeem and deposit nutrition coupons during specified valid periods.

(5)  Deposit the nutrition coupons directly in the vendor’s bank account and not transfer them for cash payment, credit, or any other benefit to any party other than the vendor’s bank or the state.

(6)  Maintain for a period of at least three years records that shall include, but not be limited to, all of the following:

(A)  Inventory records showing all purchases, both wholesale and retail, in the form of invoices that identify the quantity and prices of specified authorized supplemental foods.

(B)  Sales and use tax returns.

(C)  Books of account.

(D)  Other pertinent records that the department determines are necessary to substantiate the volume and prices charged to the state department through the nutrition coupons redeemed by the vendor.

(7)  Accept up to the maximum allowable department reimbursement as payment in full for the maximum allowable quantity of food listed on the food instrument.

(8)  Comply with department rules of vendor authorization, reimbursement, and monitoring that control program food costs, maximize participant access, and ensure program integrity.

(b)  The department shall adopt regulations to implement this section and Section 123310 in accordance with the rulemaking provisions of the Administrative Procedure Act (Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code). The adoption of any emergency regulations on or after January 1, 2000, shall be deemed to be an emergency and necessary for the immediate preservation of the public peace, health and safety, or general welfare. Emergency regulations adopted pursuant to this section shall remain in effect for no more than 180 days.

(Amended by Stats. 1999, Ch. 21, Sec. 3. Effective May 4, 1999.)

123320.
  

(a)  The department shall inform the retail food vendors of, and include in the written agreement with the vendors, guidelines consistent with Section 123315, and shall print on each coupon the following:

(1)  Specific supplemental foods and the quantities thereof for which the coupon may be redeemed.

(2)  The period of validity of the nutrition coupon.

(3)  The maximum value for which the nutrition coupon may be redeemed.

(b)  To the extent feasible, the information required pursuant to subdivision (a) shall be provided in a form that may be read by optical scanning technology readily available to vendors. The department shall, no later than March 15, 2002, report to the Legislature on the feasibility and costs of providing the information in this form. This subdivision shall be implemented only to the extent that funds for its purposes are appropriated in the annual Budget Act or another statute.

(Amended by Stats. 2001, Ch. 842, Sec. 3. Effective January 1, 2002.)

123322.
  

(a) In order to effectively manage and administer the federal and state requirements for the vendors in the WIC Program, and remain in compliance with the conditions of federal funding, the department shall establish requirements for all of the following:

(1) Peer groups and a corresponding reimbursement system.

(2) Criteria used for vendor authorization.

(3) The WIC Program authorized foods.

(b) Notwithstanding any other provisions of law, including the requirement in Section 123315 for enacting regulations to implement that section and Section 123310, the department may, without taking regulatory action pursuant to Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code, implement, interpret, or make specific this section by means of an action by bulletin or similar instruction. The department shall provide notice to, and consult with, affected stakeholders, including vendors, manufacturers, local agencies, participants, advocates, consumer groups, and their respective associations, in the process of implementing, interpreting, or making specific this statute, and meet all of the following requirements:

(1) The notice shall be provided electronically to the stakeholders identified in this subdivision and shall also be posted on the program’s Internet Web site. The notice shall state the reason for the change, the authority for the change, and the nature of the change. The notice shall provide opportunity for written comment by indicating the address to which to send the comment. The address may be an electronic site. The notice shall allow for at least 20 calendar days for comments to be submitted. The notice shall also provide the date of a consultation meeting with a stakeholder workgroup consisting of, but not limited to, representatives of stakeholder associations, stakeholder representatives, and consumer groups, to ensure stakeholder participation in the implementation of this section.

(2) The department shall consider all comments submitted before the due date, though it may withdraw the proposed action at any time by notification on its Internet Web site or notification by electronic means. Unless the department withdraws the action, it shall publish the final action on its Internet Web site no later than 120 days after the consultation with stakeholders or the last day for comments, whichever is later. If the department fails to issue a final action within 120 days from the consultation with stakeholders or the last day for comments, whichever is later, the proposed action will be deemed withdrawn. The department may finalize a proposed action that has been withdrawn by renoticing the proposed action for comment pursuant to paragraphs (1) to (3), inclusive.

(3) The department shall provide at least 30 days’ advance notice of the final action. In the final action, the department shall respond to the comments received.

(4) The department shall establish a process to collect stakeholder feedback regarding the impact of the final action and any policy adjustments that should be considered postimplementation.

(Added by Stats. 2012, Ch. 787, Sec. 5. (AB 2322) Effective September 29, 2012.)

123325.
  

A retail food vendor or any other person who knowingly redeems coupons in excess of the price charged other customers for identical foods, or who provides anything of value other than the specified foods, or who fails to provide inventory records to substantiate purchases for resale of authorized supplemental foods is subject to all sanctions set forth in federal regulation for the Special Supplemental Food Program for Women, Infants, and Children, that is provided for in Section 246 and following of Title 7 of the Code of Federal Regulations. The department may disqualify a food vendor who is currently disqualified from CalFresh.

(Amended by Stats. 2011, Ch. 227, Sec. 14. (AB 1400) Effective January 1, 2012.)

123327.
  

(a) The department shall provide written notice to a retail food vendor if the department determines that the vendor has committed an initial violation for which a pattern of the violation must be established to impose a sanction. Notice shall be provided no later than 30 days after the department determines the first investigation that identified the violation is complete.

(b) The written notice shall be delivered to the vendor 30 days before the department conducts a second investigation for purposes of establishing a pattern of the violation to the vendor’s most recent business ownership address on file with the department or to the vendor location upon identification of a violation during vendor monitoring, as defined by Section 40743 of Title 22 of the California Code of Regulations.

(c) The written notice shall include a description of the initial violation and may include information to assist the vendor to take corrective action, including, but not limited to, a 60-day window that includes the date of the violation.

(d) For purposes of this section, “violation” means a violation set forth in Section 246.2 of Title 7 of the Code of Federal Regulations.

(e) It is the intent of the Legislature in enacting this section to clarify existing law.

(Amended by Stats. 2013, Ch. 76, Sec. 126. (AB 383) Effective January 1, 2014.)

123330.
  

Any person or persons who have embezzled, willfully misapplied, stolen, or fraudulently obtained funds or benefits pursuant to this article shall be subject to the penalties set forth in federal regulations for the Special Supplemental Food Program for Women, Infants, and Children, that is provided for in Section 246 and following of Title 7 of the Code of Federal Regulations.

(Added by Stats. 1995, Ch. 415, Sec. 8. Effective January 1, 1996.)

123335.
  

Any officer, employee, or agent of the department may enter the place of business of any vendor transacting nutrition coupons to verify food prices, to witness or investigate procedures, to conduct financial audits, or to otherwise determine compliance of the vendor with this article and the vendor agreement.

(Added by Stats. 1995, Ch. 415, Sec. 8. Effective January 1, 1996.)

123340.
  

(a)  Except as provided in subdivision (c), if any amount is due and payable and unpaid as a result of an overpayment to a vendor or local agency established under this article that is identified through an audit or examination conducted by or on behalf of the director and the department has issued an audit or examination finding, or an administrative decision resulting from an administrative appeal of the audit or examination finding that has become final, the director may file in the office of the County Clerk of Sacramento County and with the county clerk of the county in which the vendor has his or her principal place of business, a certificate containing the following:

(1)  The amount due and owing and unpaid plus the applicable interest at a rate equal to the monthly average of the rate received on investments in the Pooled Money Investment Fund commencing on the date that an audit or examination finding, made pursuant to Section 316.5 is mailed to the vendor or local agency.

(2)  A statement that the director has complied with this article prior to the filing of the certificate.

(3)  A request that judgment be entered against the vendor or local agency in the amount set forth in the certificate.

The county clerk immediately upon the filing of the certificate, shall enter a judgment for the State of California against the vendor or local agency in the amount set forth in the certificate.

Notwithstanding any provision of law to the contrary, the Special Supplemental Food Program for Women, Infants, and Children shall pay the normal fee charged by the county for the certificate of judgment.

Nothing in this subdivision shall prevent the director from using any other means available in law to recover amounts due and owing and unpaid from the vendor or local agency.

(b)  The dates when the department may file the certificate and seek judgment from the county clerk, as provided in subdivision (a), depends on whether the audit finding is appealed by the vendor or local agency.

(1)  If the audit finding or lower level administrative decision is not appealed, the department may file the certificate the day after the end of the appeal period or anytime thereafter, but not later than three years after the payment became due and owing.

(2)  If the audit finding or lower level administrative decision is appealed to the director, the department may file the certificate no earlier than 90 days after the issuance of the final decision by the director, but no later than three years after the issuance of the final decision.

(c)  If the vendor seeks judicial review of the final decision of the director pursuant to Section 1094.5 of the Code of Civil Procedure, and notice of the action is properly served on the director within 90 days of the issuance of the final decision, the department shall not file any certificate as provided in subdivision (a).

If the vendor does not seek judicial review of the final decision of the director or does not properly serve notice within 90 days from the date of the final decision of the director, the department may file the certificate and obtain judgment pursuant to subdivision (a).

(Added by Stats. 1995, Ch. 415, Sec. 8. Effective January 1, 1996.)

123345.
  

An abstract of judgment obtained pursuant to subdivisions (a) and (b) of Section 123340 or a copy thereof may be recorded with the county recorder of any county. From the time of recording, the judgment shall constitute a lien upon all real or personal property owned by the vendor at the time, or that the vendor may afterwards, but before the lien expires, acquire. The lien shall have the force, effect, and priority of a judgment lien and shall continue for 10 years from the time of recording of the abstract of judgment obtained pursuant to subdivisions (a) and (b) of Section 123340 unless sooner released or otherwise discharged.

The lien may, within 10 years from the date of recording of the abstract of judgment or within 10 years from the date of the last extension of the lien in the manner herein provided, be extended by recording a new abstract in the office of the county recorder of any county. From the date of the recording the lien shall be extended for 10 years unless sooner released or otherwise discharged.

(Amended by Stats. 1997, Ch. 97, Sec. 9. Effective July 21, 1997.)

123350.
  

The department shall arrange for the conduct of periodic audits of participating local agencies.

(Added by Stats. 1995, Ch. 415, Sec. 8. Effective January 1, 1996.)

123355.
  

The department shall provide a hearing procedure whereby any food vendor or local agency may appeal any adverse action taken by the department affecting the vendor’s or local agency’s participation in the California Supplemental Food Program for Women, Infants, and Children. The hearing procedure shall be in accordance with the requirements of the federal regulations for the Special Supplemental Food Program for Women, Infants, and Children, that is contained in Section 246 et seq. of Title 7 of the Code of Federal Regulations.

(Added by Stats. 1995, Ch. 415, Sec. 8. Effective January 1, 1996.)

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