Appeals from the orders of the Hearing Examiner, Department of Health, in the case of Giant Food Stores, Inc., Store No. 41 v. Pennsylvania Department of Health, Special Supplemental Food Program for Women, Infants and Children, Docket No. WIC 87-022, and in the case of Giant Food Stores, Inc., Store No. 48 v. Pennsylvania Department of Health, Special Supplemental Food Program for Women, Infants and Children, Docket No. WIC 87-023.
Michael D. Reed, with him, James J. Kutz, Shearer, Mette, Evans & Woodside, for petitioner.
Kenneth E. Brody, Assistant Counsel, with him, Ruth E. Granfors, Chief Counsel, for respondent.
Judges Doyle and Smith, and Senior Judge Kalish, sitting as a panel of three. Opinion by Senior Judge Kalish.
[ 123 Pa. Commw. Page 419]
Giant Food Stores, Inc., stores #41 and #48, petitions for review of orders of the Pennsylvania Department of Health (Department), which removed both stores from the WIC program, a special supplemental food program for women, infants, and children. We affirm in part and reverse in part.
The WIC program is a federally funded and regulated program implemented by the Department in Pennsylvania. It is a supplemental food program for low income, pregnant or post-partum women who are at nutritional risk because of medical problems or poor diet (WIC Program Handbook). In Pennsylvania the program is implemented by the Department, which uses local agencies to oversee local aspects.
In order to implement the program, the Department entered into contracts with various vendors which among
[ 123 Pa. Commw. Page 420]
others, included the individual Giant stores #41 and #48. The application for participation as a vendor in the WIC program was made a part of the contract, and provided as follows:
If my store is approved for participation as a WIC Retail Store I am aware that my Authorization to participate is subject to review by the State Agency as early as 18 months from the effective date of Authorization. At the time of review that State Agency will Decide whether or not to renew my Authorization. I also understand that the Authorization will expire two years from the effective date, unless my store is granted an extension by letter of authorization from the State Agency.
Store #48 was certified to participate as a vendor under the WIC program on May 1, 1986. According to the terms of the agreement, certification was subject to review by the state as early as eighteen months from the effective date of the authorization.
The Department conducted a recertification inspection of store #48 on June 26, 1987, less than fourteen months after the original certification. At the time of the inspection there were 27 thirteen ounce cans of milk-based iron-fortified liquid concentrated formula, as opposed to the 62 cans required in the WIC program handbook. In addition there were 20 thirty-two ounce cans of soy-based formula, as opposed to 25 cans required by the WIC Program handbook. ...