BILL NUMBER: AB 2322 AMENDED
BILL TEXT
AMENDED IN SENATE AUGUST 22, 2012
AMENDED IN ASSEMBLY MAY 1, 2012
AMENDED IN ASSEMBLY APRIL 11, 2012
AMENDED IN ASSEMBLY MARCH 26, 2012
INTRODUCED BY Assembly Member Gatto
FEBRUARY 24, 2012
An act to amend Section Sections 123280
and 123285 of, and to add Section
Sections 123312 and 123322 to, the Health and Safety
Code, relating to nutrition , and declaring the urgency
thereof, to take effect immediately .
LEGISLATIVE COUNSEL'S DIGEST
AB 2322, as amended, Gatto. California Special Supplemental Food
Program for Women, Infants, and Children.
Existing law, the California Special Supplemental Food Program for
Women, Infants, and Children (WIC Program), authorizes establishment
of a statewide program, administered by the State Department of
Public Health, for providing nutritional food supplements to
low-income pregnant women, low-income postpartum and lactating women,
and low-income infants and children under 5 years of age, who have
been determined to be at nutritional risk. The program, which
implements a program authorized under existing federal law, provides
for the redemption of nutrition coupons by recipients at any
authorized retail foodvendor food vendor
. Existing law requires the department to authorize an
appropriate number and distribution of WIC Program retail food
vendors, and requires the department to establish certain criteria to
limit the number of vendors.
This bill would require the department, in order to be in
compliance with federal law and conditions of federal funding, to
take certain actions including adopting mandatory federal
requirements and guidelines for the federal Special Supplemental
Nutrition Program for Women, Infants, and Children as requirements
for the WIC Program, and establishing requirements for peer groups
and a corresponding reimbursement system, criteria used for vendor
authorization, and WIC Program authorized foods. This bill would
require the department, in establishing requirements for peer groups
and a corresponding reimbursement system, criteria used for vendor
authorization, and WIC Program authorized foods, to, among other
things, notify and consult with affected stakeholders and provide an
opportunity for written comment.
This bill would require the department to adopt
regulations to specify certain criteria the department
shall would use and actions the
department shall would take when
initiating a moratorium on new WIC Program vendor location
applications. This bill would authorize the department, without
taking regulatory action, to implement, interpret, or make specific
these criteria or actions by means of a vendor bulletin, as
specified. This bill would require the department to seek any
federal approvals necessary to implement these provisions.
This bill would declare that it is to take effect immediately as
an urgency statute.
Vote: majority 2/3 . Appropriation:
no. Fiscal committee: yes. State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. The Legislature finds and declares as follows:
that the California Special Supplemental
Food Program for Women, Infants, and Children (WIC Program) currently
authorizes 5,581 retail food stores, or WIC Program vendors, to
accept WIC Program nutrition coupons from participants in exchange
for authorized WIC Program food products.
(a) The California Special Supplemental Food Program for Women,
Infants, and Children (WIC Program) currently authorizes 5,581 retail
food stores, or WIC Program vendors, to accept WIC Program nutrition
coupons from participants in exchange for authorized WIC Program
food products.
(b) From 2007 to 2011, the total number of authorized WIC Program
vendors has grown from 3,527 vendors in 2007 to 5,135 vendors in
2011.
(c) In April 2011, the WIC Program imposed a moratorium on
accepting applications for new vendor authorizations. The moratorium
was necessary to ensure the department's ability to effectively
manage vendor caseload, as required by Section 40735(a) of Title 22
of the California Code of Regulations and Section 246.12(g) of Title
7 of the Code of Federal Regulations. This moratorium was extended in
February 2012, in order to provide the department with an
opportunity to develop appropriate measures to process the rapid
increase in vendor applications in light of the limited federal funds
that are available.
SEC. 2. Section 123280 of the Health
and Safety Code is amended to read:
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 Food
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.
SEC. 2. SEC. 3. Section 123285 of the
Health and Safety Code is amended to read:
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
Food Nutrition Program for Women,
Infants, and Children.
SEC. 3. SEC. 4. Section 123312 is
added to the Health and Safety Code, to read:
123312. (a) The department shall adopt regulations to
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) The regulations, A vendor bulletin
initiating a moratorium, at a minimum, shall
do include all of the following:
(1) Define what is an effective caseload management level.
(2) Identify
(1) The reason for, and the
maximum duration of , a moratorium.
(3) Require a vendor alert or other official communication
regarding initiation of a moratorium to be accompanied by an
(2) An action plan with specific
steps the department plans to take to achieve effective
caseload management 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.
(4) Require the department to process
(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 was notified by the retail food vendor of the
vendor's intent to obtain authorization for a specific store location
received the vendor's completed application for that
store location prior to the effective date of the moratorium.
(5) Require the department to
(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.
SEC. 4. The department shall seek any federal
approvals necessary to implement this act.
SEC. 5. Section 123322 is added to the
Health and Safety Code , to read:
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.
SEC. 6. This act is an urgency statute necessary
for the immediate preservation of the public peace, health, or safety
within the meaning of Article IV of the Constitution and shall go
into immediate effect. The facts constituting the necessity are:
In order to immediately implement federal goals and directives, to
maintain compliance with federal grant requirements, including
improved access to competively priced foods, and to preserve and
benefit the public health of the state, it is necessary that this act
take effect immediately.