Save Philly Stores Darby, LLC d/b/a Save A Lot v. Dept. of Health, Bureau of WIC ( 2020 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Save Philly Stores Darby, LLC d/b/a :
Save A Lot, :
Petitioner :
:
v. : No. 1324 C.D. 2019
: Argued: June 12, 2020
Department of Health, Bureau of WIC, :
Respondent :
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE J. ANDREW CROMPTON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE CROMPTON FILED: July 17, 2020
Save Philly Stores Darby, LLC d/b/a Save A Lot (Save A Lot) petitions
for review from a Hearing Officer’s (Hearing Officer) September 4, 2019
Adjudication and Order affirming the November 21, 2017 decision of the
Commonwealth of Pennsylvania, Department of Health (DOH), Bureau of Women,
Infants, and Children (WIC), disqualifying Save A Lot from participation in the WIC
program (Program) for one year for failing to attend mandatory annual WIC training.
Upon review, we affirm the order of the Hearing Officer.
I. Background
By letter dated November 21, 2017, DOH informed Save A Lot that it
was being disqualified from the WIC program for a period of one year in accordance
with WIC regulations (Regulations), for failing to have at least one representative
attend mandatory annual WIC training during Federal fiscal year 2016-2017.
On December 13, 2017, Save A Lot filed a Notice of Appeal and
Request for Hearing in regard to DOH’s determination. Save A Lot admitted it did
not have anyone in attendance at the scheduled training but asserted that the failure
was due to an oversight by a store employee who did not attend because of a family
emergency and to a miscommunication with another employee who was scheduled
to attend. On April 19, 2019, a hearing was held before the Hearing Officer. On
September 4, 2019, the Hearing Officer issued an adjudication and order, affirming
DOH’s decision disqualifying Save A Lot from participation in the WIC program
for one year.
II. Applicable Law
The issues in this matter coalesce, primarily, around the following
sections of 28 Pa. Code, Part VIII, Supplemental Nutrition Program for Women,
Infants, and Children.1 These sections are:
§1103.7. Inadequate participant access.
***
(b) The Department may consider whether there is inadequate
participant access when deciding whether to impose a civil
money penalty in lieu of disqualification under §1107.1 (relating
to imposition of sanctions).
(c) Inadequate participant access is any of the following:
(1) Ten or more participants whose specific nationality,
ethnicity or religious dietary needs cannot be served
1
“It is well settled law that an agency’s substantive regulations, when properly enacted . .
. have the force and effect of law and enjoy a general presumption of reasonableness.” Eastwood
Nursing and Rehab. Ctr. v. Dep’t of Pub. Welfare, 910 A.2d 134, 141-142 (Pa. Cmwlth. 2006).
2
properly by another WIC[-]authorized store located in
accordance with one of the following:
(i) Less than 3 miles of the store for counties with participant
density less than 25 participants per square mile.
(ii) Less than 2 miles of the store for counties with
participant density of 25 to 100 participants per square mile.
(iii) Less than 1 mile of the store for counties with
participant density greater than 100 participants per square mile.
(2) Ten or more participants will be required to travel in
accordance with one of the following:
(i) Three or more miles to the next closest WIC[-]authorized
store for counties with participant density less than 25
participants per square mile.
(ii) Two or more miles to the next closest WIC[-]authorized
store for counties with participant density of 25 to 100
participants per square mile.
(iii) One or more miles to the next closest WIC[-]authorized
store for counties with participant density greater than 100
participants per square mile.
(3) A participant has a physical disability that cannot be
accommodated by another WIC[-]authorized store in accordance
with one of the following:
(i) Within 3 miles of the store for counties with participant
density less than 25 participants per square mile.
(ii) Within 2 miles of the store for counties with participant
density of 25 to 100 participants per square mile.
(iii) Within 1 mile of the store for counties with participant
density greater than 100 participants per square mile.
(4) Ten or more participants are affected by physical barriers
or conditions which make normal travel to another WIC[-]
authorized store impractical.
3
28 Pa. Code § 1103.7.
§ 1105.1. Training.
***
(b) Annual training. The Department will provide for WIC[-
]authorized stores annual training which is designed to prevent
WIC Program errors and abuses and to improve WIC Program
services. The following apply to annual training:
(1) A WIC[-]authorized store shall ensure that at least one
representative from the store who is responsible for training store
personnel on the WIC Program shall attend.
(2) Attendance is mandatory.
....
(5) Failure to have at least one representative attend training
shall result in the Department imposing sanctions against the
WIC-authorized store under §1107.1a.(d)(15) (relating to
disqualifications).
28 Pa. Code § 1105.1.
§ 1107.1. Imposition of sanctions.
(a) The Department may disqualify a WIC[-]authorized store or
impose a civil money penalty in lieu of disqualification for
reasons of WIC Program abuse. In the case of fraud, trafficking,
sale of alcohol or alcoholic beverages or tobacco products the
Department will not provide the store with a prior warning that
violations were occurring before imposing the sanctions. For
other serious program violations or offenses, the Department
may choose to not provide the store with prior warning that
violations were occurring before imposing the sanctions. The
store may appeal a Department decision pertaining to
disqualification, denial of authorization or reauthorization, or
other adverse action that affects the store’s status as a WIC[-]
4
authorized store in accordance with §1113.1 (relating to right to
administrative appeal). Expiration of authorization,
disqualification of a store as a result of disqualification from the
Food Stamp Program, and the Department’s determination
regarding inadequate participant access are not subject to review.
(b) The Department will disqualify a store which has been
disqualified from the Food Stamp Program unless the
Department determines that the disqualification of the store
would result in inadequate participant access under §1103.7
(relating to inadequate participant access). If the Department
determines that disqualification of the store would result in
inadequate participant access under §1103.7, the Department
will give the store the option of paying a civil money penalty in
lieu of disqualification.
(c) The Department will disqualify a store that has been assessed
a civil money penalty in lieu of disqualification under the Food
Stamp Program unless disqualification of the store from the WIC
Program would result in inadequate participant access or would
otherwise adversely affect the interest of participants. . . .
(d) The Department will disqualify a store for WIC Program
violations in §1107.1a (relating to disqualifications) unless the
Department determines that disqualification of the store under
§1107.1a(b)—(d) would result in inadequate participant access.
In that case, the Department will give the store the option of
paying a civil money penalty in lieu of disqualification. The
Department will not give the store the option of paying a civil
money penalty in lieu of disqualification for third or subsequent
violations. A violation committed during a prior authorization
period will support a disqualification.
28 Pa. Code § 1107.1.
§ 1107.1a. Disqualifications.
***
(d) One-year disqualification. The Department will disqualify
a WIC[-]authorized store for 1 year for any of the following
violations:
5
***
(15) Failing to have at least one representative of the store
attend required training.
28 Pa. Code § 1107.1a.
§ 1113.1. Right to administrative appeal.
***
(b) A store may not appeal the following:
(1) The expiration of authorization or reauthorization.
(2) The validity or appropriateness of selection criteria.
(3) The validity or appropriateness of the Department’s
participant access criteria and the Division of WIC’s
participant access determination.
28 Pa. Code §1113.1 (emphasis added).
III. Hearing Officer’s Adjudication and Order
After taking testimony and evidence at a hearing, the Hearing Officer
issued an adjudication and order in which he made the following findings of fact as
stated verbatim, or closely paraphrased, below. Reproduced Record (R.R.) at 142A-
158A.
Save A Lot was a WIC-authorized store in Delaware County,
Pennsylvania. R.R. at 145A. “WIC-authorized stores are required to abide by
Federal and State regulations pertaining to the WIC Program.” Id. “WIC-authorized
stores are required to have at least one representative from the store attend mandatory
6
annual training.” Id. On August 20, 2017, DOH sent correspondence to Save A Lot
informing it of two available mandatory annual training dates in its region. Id. Save
A Lot received the correspondence, but Save A Lot’s designated representatives did
not attend either of the identified training sessions. R.R. at 146A.
The Hearing Officer found that, should DOH determine inadequate
access for WIC participants will result if a WIC-authorized store is disqualified from
the Program, DOH will offer the store a civil monetary penalty in lieu of
disqualification. The Hearing Officer further found that, in Delaware County, this
would apply if DOH determines there is no other WIC-authorized store within 2
miles, based upon a population density criteria of 200 participants per square mile.
Perce Morgan (Morgan) is the WIC Program Supervisor for DOH’s WIC Retail
Store Unit. R.R. at 146A-147A. Morgan’s responsibilities include overseeing the
authorization and reauthorization of WIC stores and WIC store training. The
Hearing Officer found that, prior to making the determination to disqualify Save A
Lot from the WIC Program, Morgan determined WIC participants would not
experience any access problems. R.R. at 147A.
Because Save A Lot’s designated representatives failed to attend
mandatory annual WIC training for Federal fiscal year 2016-2017, and because
DOH determined that participant access would not be impeded by the
disqualification of Save A Lot’s store, DOH served Save A Lot with a notice of
program disqualification on November 21, 2017. R.R. at 146A. This notice
informed Save A Lot that it was being disqualified from participation in the WIC
7
Program for one year in accordance with 28 Pa. Code §§1105.1(b)(5) and
1107.1a(d)(15). Id.
The Hearing Officer determined that DOH’s decision to disqualify
Save A Lot from participation in the WIC Program for one year was consistent with
WIC Program Regulations and was supported by the evidence of record. R.R. at
149A-150A. Save A Lot petitions this Court for review.2
IV. Discussion/Argument
On appeal, Save A Lot argues that DOH may not disqualify it from the
WIC Program because DOH did not follow the law regarding imposition of
sanctions and did not evaluate whether the disqualification would cause participant
hardship or create inadequate participant access in the area of the store’s geographic
location, per 28 Pa. Code § 1103.7(c)(1)-(4). Save A Lot asserts that, prior to its
disqualification from the WIC Program, DOH was required to examine “participant
density” within a defined geographic distance to determine if there would be
hardship to Program participants left without a nearby WIC-authorized store, per 28
Pa. Code §1103.7(c)(2), or whether a participant, with specific national, ethnic or
religious dietary needs would be left unserved by another such store. 28 Pa. Code
§1103.7(c)(1). Pet’r’s Br. at 14-15.
2
This Court’s review in appeals from adjudications of a Commonwealth agency is whether
there is substantial evidence to support the agency’s findings of fact, whether the agency
committed an error of law, or whether constitutional rights were violated. B.B. Kim’s Market, Inc.
v. Dep’t of Health, Div. of Women, Infants & Children (WIC), 762 A.2d 1134 (Pa. Cmwlth. 2000).
8
In addition, Save A Lot contends that, pursuant to 28 Pa. Code
§1103.7(c)(3), DOH must determine whether 10 or more people are affected by
physical barriers or conditions which make travel to another WIC store impractical
or whether any participants have a physical disability that cannot be accommodated
by another WIC-authorized store. 28 Pa. Code §1103.7(c)(4). Save A Lot argues
that, while the burden rests with DOH, Save A Lot, itself, took steps, by way of
signed surveys/questionnaires, which it presented at the hearing before the Hearing
Officer, to provide evidence that some of its customers would suffer a hardship if it
was disqualified from the WIC Program. Pet’r’s Br. at 15.
Further, Save A Lot contends that DOH was permitted to impose civil
monetary penalties in lieu of disqualification for its infraction and that the Hearing
Officer had the discretion to direct DOH to do the same. Pet’r’s Br. at 13, 17. Save
A Lot argues that its disqualification must be reversed, or remanded to DOH for
determination of a civil monetary penalty, if any, based on Save A Lot’s evidence
that there will be customer hardship, and the failure of DOH to investigate whether
there would be hardship to WIC Program participants. Pet’r’s Br. at 17. Save A Lot
further asserts that DOH improperly disqualified it from participation in the WIC
Program for a “de minimis” infraction, and, thus, failed to follow the mandates of 28
Pa. Code §1107.1(a)-(d). Pet’r’s Br. at 13.
Save A Lot argues that the surveys it obtained from customers, and the
letters it obtained from some of its employees, should have been admitted into
evidence by the Hearing Officer because they were corroborated, inherently reliable,
and an exception to hearsay as business records. Specifically, Save A Lot asserts
9
that said documents were corroborated by its witness, office manager, Mr. Oliver
McElhone (McElhone), at the hearing before the Hearing Officer and that DOH did
not object to their admission. Pet’r’s Br. at 17-18. Save A Lot argues that the
documents fit within the exception to the hearsay rule, at administrative hearings, as
set forth in Unemployment Compensation Board of Review v. Ceja, 427 A.2d 631
(Pa. 1981), which Save A Lot suggests “encourages” the admissibility of certain
hearsay evidence where same is corroborated and reliable. Pet’r’s Br. at 18. In
addition, Save A Lot relies on this Court’s holding in Walker v. Unemployment
Board of Review, 367 A.2d 366 (Pa. Cmwlth. 1976), for the proposition that hearsay
evidence, admitted without objection, will be given its natural probative effect and
may support a finding if it is corroborated by any competent evidence in the record.
Save A Lot acknowledges that Walker also stands for the proposition that a finding
of fact based solely on hearsay will not stand. In this regard, Save A Lot maintains
that its witness, McElhone, testified to the contents of the documents and provided
the necessary authentication and corroboration, and that its case was not based on
the documents alone. Pet’r’s Br. at 18-19.
Additionally, Save A Lot asserts that the decision to disqualify it from
the WIC Program was not based on substantial evidence and that DOH violated its
due process rights under the Fourteenth Amendment to the United States
Constitution3 in that the laws governing the present matter are vague and ambiguous
such that Save A Lot was confused and unable to understand the full extent of its
rights under the law. Pet’r’s Br. at 22-24.
3
U.S. Const. amend. XIV.
10
V. Analysis
In conducting our review of Save A Lot’s arguments, we first address
the contention that the law at issue is unconstitutional due to vagueness and
ambiguity and that Save A Lot was denied due process as a result.
Save A Lot argues that a statute may be found unconstitutionally vague
if it “lacks definiteness or adequacy of statutory expression.” Com. v. Morgan, 913
A.2d 906, 911 (Pa. Super. 2006). Save A Lot asserts that, in the instant matter, the
law in question is not definite in regard to the penalty provisions that apply to a WIC
infraction, providing discretion for punishment on one hand, and no discretion on
the other. Pet’r’s Br. at 24.
However, as DOH notes in its appellate brief, our Supreme Court has
held that:
“[a] statute is presumed to be constitutional and will only be
invalidated as unconstitutional if it ‘clearly, palpably, and plainly
violates constitutional rights.’” Commonwealth v. Ludwig, 874
A.2d 623, 628 (Pa. 2005) (quoting Commonwealth v.
MacPherson, 752 A.2d 384, 388 (Pa. 2000)). In interpreting
statutes, courts shall, where possible, “constru[e] statutes in a
constitutional manner.” Id. (citing Harrington v. [Dep’t] of
Transp[.], Bureau of Driver Licensing, 763 A.2d 386, 393 (Pa.
2000)). To avoid being deemed unconstitutionally vague, “a
statute must provide reasonable standards by which a person may
gauge his future conduct[.]” Id. (citing Smith v. Goguen, 415 U.S.
566 (1974)). A party challenging the constitutionality of a statute
“bears a heavy burden of persuasion.” Id. (citing MacPherson,
752 A.2d at 388).
Resp’t’s Br. at 18.
11
Section 1105.1(b)(5) of the Regulations states that “(f)ailure to have at
least one representative attend training shall result in DOH imposing sanctions
against the WIC-authorized store under Section 1107.1a(d)(15) (relating to
disqualifications).” 28 Pa. Code §1105.1(b)(5). The sanction to be imposed under
Section 1107.1a(d)(15) is a mandatory one-year disqualification. 28 Pa. Code
§1107.1a(d)(15). DOH does not have the authority to issue a civil monetary penalty
in lieu of disqualification absent a showing of inadequate participant access. The
Regulations are presumed to be constitutional and provide clear and reasonable
standards to guide WIC-authorized vendors, such as Save A Lot, as well as DOH, in
the administration of the Program. Although Save A Lot contends that the
Regulations are confusing, and, in fact, the Regulations may have been confusing to
Save A Lot, it has not demonstrated that the Regulations are objectively vague and/or
confusing. Further, the evidence of record establishes that Save A Lot understood
its obligation to attend mandatory annual training and that it had consistently done
so prior to 2017, providing some reasonable indicia that it understood, and continues
to understand, its rights and obligations under the law as it currently exists. Thus, in
our view, Save A Lot has not met the heavy burden of persuasion required to
demonstrate that the Regulations are unconstitutionally vague and unenforceable.
Having arrived at this conclusion, we turn our attention to Save A Lot’s remaining
arguments.
Save A Lot argues that the Hearing Officer erred by not admitting into
evidence the surveys and letters Save A Lot obtained from its customers and
presented at the hearing in this matter. Save A Lot contends that these documents
were proffered without objection and were corroborated by its witness, McElhone,
12
at the hearing. However, Save A Lot’s reliance on Walker is unavailing, as the
documents were not admitted without objection. Despite Save A Lot’s contention
to the contrary, DOH’s legal counsel objected to the letters and surveys when
proffered by Save A Lot at the hearing. R.R. at 70A-74A. Save A Lot further argues
that these documents should have been admitted into evidence because they are
inherently reliable and are an exception to hearsay as business records.
Save A Lot suggests that the letters and questionnaires it sought to
introduce are admissible under Rule 803(6) of the Pennsylvania Rules of Evidence,4 as
records of a regularly conducted business activity. Pet’r’s Br. at 18. However, Save A
Lot did not establish that these records were kept in the course of a regularly conducted
activity of the business. Rather, these exhibits were specifically created at the request
4
Pa. R.E. 803(6) states, in pertinent part:
Records of a Regularly Conducted Activity. A record (which includes a
memorandum, report or data compilation in any form) of an act, event or
condition if:
(A) the record was made at or near the time by-or from information
transmitted by-someone with knowledge;
(B) the record was kept in the course of a regularly conducted activity of a
“business. . . . ;”
(C) making the record was a regular practice of that activity;
(D) all these conditions are shown by the testimony of the custodian or
another qualified witness, or by a certification that complies with Rule
902(11) or (12) or with a statute permitting certification; and (E) the
opponent does not show that the source of information or other
circumstances indicate a lack of trustworthiness.
13
of Save A Lot, after-the-fact, to explain why it did not have a representative in
attendance at the WIC mandatory annual training and to provide information about the
detrimental impact that its disqualification from the Program would have on some of its
customers. R.R. at 147A; April 19, 2019 Hearing Notes of Testimony (N.T.) at 57.
However, as part of its reliance on Pa. R.E. 803(6), Save A Lot was required, among
other things, to demonstrate that the records were “kept in the course of a regularly
conducted business, and it must be the regular practice of the business to keep records
of the type offered into evidence.” Ganster v. W. Pa. Water Co., 504 A.2d 186, 190 (Pa.
Super. 1985); See also Bayview Loan Servicing LLC v. Wicker, 206 A.3d 474 (Pa.
2019). Save A Lot needed to demonstrate that the records were “made systematically
and as part of a regular routine which requires the recording of events or occurrences”
and that there was “no lack of trustworthiness” in the records themselves. Id. Save A
Lot offered no evidence that these records were “kept in the course of a regularly
conducted activity” of the business.
Some of the documents were letters proffered to explain why Save A Lot
failed to ensure that one of its representatives attended mandatory annual training.
Others were questionnaires prepared so that customers could provide information about
whether, and how, they would be adversely affected by Save A Lot’s one-year
disqualification from the Program. R.R. at 83A-104A; 147A. All of the documents
were prepared after Save A Lot’s disqualification from the WIC Program. The letters
were prepared by employees in an attempt to explain why they missed the mandatory
annual training so that Save A Lot would not be disqualified from the WIC Program.
They were not drafted as part of a systematic or regular routine. Further, and as DOH
maintains, the letters failed to demonstrate trustworthiness because they were created
14
by individuals (employees) who stood to benefit if Save A Lot was not disqualified
from the WIC Program. Resp’t’s Br. at 17; R.R. at 78A-80A. As such, the Hearing
Officer properly determined that none of these exhibits were admissible under Pa. R.E.
803(6) as records of a regularly conducted business activity, and all were appropriately
rejected by the Hearing Officer as hearsay. Pa. R.E. 803(6). In addition, and as DOH
also notes, the reasons that Save A Lot’s employees failed to attend the mandatory
annual training are irrelevant because intent is not considered when determining
whether there was a violation of the Regulations. See 28 Pa. Code §1101.2.5 Resp’t’s
Br. at 15. Ironically, the admission of these exhibits into evidence would only buttress
DOH’s position by serving as an admission by Save A Lot that it did not send a
representative to mandatory annual training.
As an additional matter of contention, Save A Lot argues that the Hearing
Officer erred by finding DOH had properly determined whether adequate participant
access would be maintained prior to Save A Lot’s disqualification from the WIC
Program and that the decision to disqualify Save A Lot was not supported by
substantial competent evidence. Pet’r’s Br. at 9; Resp’t’s Br. at 8-12. We disagree.
“Substantial evidence has been defined as such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Republic Steel Corp. v.
Workmen’s Comp. Appeal Bd. (Shinsky), 421 A.2d 1060, 1062 (Pa. 1980) (citing In
re Shenandoah Suburban Bus Lines, Inc., 50 A.2d 301 (Pa. 1947)). Specifically,
when performing a substantial evidence analysis, a court must view the evidence in
5
28 Pa. Code §1101.2 states: “Store violation—Intentional or unintentional action by the
owners, officers, managers, agents or employees of a WIC-authorized store that violates the
requirements in this part governing the store’s participation in the WIC Program and that may
result in a claim.”
15
the light most favorable to the party that was successful in the case before the fact
finder. WAWA v. Workers’ Comp. Appeal Board (Seltzer), 951 A.2d 405 (Pa.
Cmwlth. 2008). Appellate review must, therefore, “focus on whether there is rational
support in the record, when reviewed as a whole, for the agency action.” Republic
Steel Corp., 421 A.2d at 1063.
In the instant matter, the Hearing Officer determined that, in Delaware
County, a WIC-authorized store, such as Save A Lot, would be offered a civil
monetary penalty due to inadequate participant access (in lieu of disqualification for
failing to attend mandatory training), if there was no other WIC-authorized store
within two miles. This is based upon a density criterion of 200 participants per
square mile density.6 R.R. at 146A. Although Morgan did not testify in intricate
detail about DOH’s methodology, he provided sufficient testimony for the Hearing
Officer to credit DOH’s position that it had determined no access problems would
result from Save A Lot’s disqualification from the WIC Program prior to issuing its
November 21, 2017 disqualification letter. R.R. at 146A-147A. Further, there is
nothing in the Regulations that requires a participant density study to be conducted
prior to each disqualification. See 28 Pa. Code §1103.7. Moreover, under 28 Pa.
6
As DOH’s witness, Morgan testified, and the Hearing Officer accepted, based on the
participant density information available for Delaware County, DOH properly concluded Save A
Lot’s disqualification would not result in inadequate participant access. Specifically, if another
WIC-authorized store had not been located within two miles, Save A Lot would not have been
disqualified from the WIC Program due to inadequate participant access. R.R. at 46A-47A. The
use of the two-mile measurement is established by the Regulations and is determined by the density
of participants in the county where Save a Lot is located. Id.; 28 Pa. Code § 1103.7.
16
Code §1113.1(b)(3), Save A Lot is barred from appealing DOH’s determination
regarding participant access.7 See also R.R. at 152A-153A.
Additionally, Save A Lot argues it should not have been disqualified
from the Program for a “de minimis infraction.” Pet’r’s Br. at 13. However, the
term “de minimis” or “de minimis infraction” does not appear in the Regulations.
Furthermore, failure to attend mandatory annual training carries with it a one-year
disqualification from the Program, which, in and of itself, implies a level of severity
that is more than “de minimis” in nature. To this point, examples of other violations
which require a one-year disqualification from the Program include providing false
information on a store’s application for authorization or reauthorization in the
Program, failure to properly refrigerate allowable foods, and closure of a
participating store by a county or local health department. See 28 Pa. Code
§1107.1a.
After hearing testimony from witnesses on behalf of Save A Lot and
DOH and making his findings of fact, the Hearing Officer concluded:
4. WIC-authorized stores are on notice under [DOH’s]
regulations that following authorization, [DOH] will provide
annual training for WIC-authorized stores which is designed to
prevent WIC Program errors and abuses and to improve WIC
Program services. (28 Pa. Code §1105.1(b)).
5. WIC-authorized stores are on notice under [DOH’s]
regulations that attendance at annual training is mandatory. (28
Pa. Code §1105.1(b)(2)).
7
Although we consider the issues raised by Save A Lot relative to the matter of participant
access, we do so in light of the understanding that 28 Pa. Code §1113.1(b)(3) strictly bars any
appeal of DOH’s determination in this regard.
17
6. WIC-authorized stores are on notice under [DOH’s]
regulations that their failure to have at least one representative
attend training shall result in [DOH] imposing sanctions against
the offending WIC-authorized stores under §1107.1a(d)(15)
(relating to disqualifications). (28 Pa. Code §1105.1(b)(5)).
7. WIC-authorized stores are on notice under [DOH’s]
regulations that their failure to have at least one representative
attend training shall result in a one-year disqualification from the
WIC Program. (28 Pa. Code §1107.1a(d)(15)).
R.R. at 149A.
As the Hearing Officer determined, Save A Lot understood the rules to
which it was required to abide and the consequences of failing to abide by those
rules. Ultimately, Save A Lot’s informed choices resulted in a proper
disqualification from the WIC program for one year. The Hearing Officer heard
testimony and reviewed the evidence, concluding that “[b]ased on the admissible
evidence presented and regulations applicable to [Save A Lot] as a participant of the
WIC Program,” DOH’s disqualification of Save A Lot from participation in the WIC
Program for a period of one year should be affirmed as a result of its failure to attend
the mandatory training required by 28 Pa. Code §1105.1(b). R.R. at 157A.
Based upon our review, it is apparent to us that the Hearing Officer’s
findings and conclusions were supported by the substantial competent evidence of
record. Further, we discern no error of law or abuse of discretion. Seeing no basis
upon which we would disturb the outcome in this matter, the adjudication and order
18
of the Hearing Officer, which affirmed the determination of DOH disqualifying Save
A Lot from participation in the WIC Program for one year, is affirmed.
______________________________
J. ANDREW CROMPTON, Judge
19
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Save Philly Stores Darby, LLC d/b/a :
Save A Lot, :
Petitioner :
:
v. : No. 1324 C.D. 2019
:
Department of Health, Bureau of WIC, :
Respondent :
ORDER
AND NOW, this 17th day of July 2020, the order of the Hearing
Officer, affirming the determination of the Department of Health, Bureau of Women,
Infants and Children (WIC) that Save Philly Stores Darby, LLC d/b/a Save A Lot
was properly disqualified from participation in the WIC Program for one year, for
failing to attend mandatory annual training, is AFFIRMED.
______________________________
J. ANDREW CROMPTON, Judge