Implementation of WIC-Related Electronic Benefit Transfer (EBT) Provisions of PL 111-296

Background

The Healthy, Hunger-Free Kids Act of 2010 (the Act), PL 111-296, includes several provisions related to Electronic Benefit Transfer (EBT) in the Special Supplemental Nutrition Program for Women, Infants, and Children (42 USC 1786 et. seq.)(WIC). The Act was signed into law by President Obama on Dec. 13, 2010. The EBT provisions of the Act include:

1. a definition of EBT;
2. a mandate that all state agencies implement EBT systems by Oct. 1, 2020;
3. a requirement for state agencies to submit annual EBT Status Reports on their progress toward EBT implementation;
4. revisions to current provisions that prohibit imposition of costs on retail vendors;
5. a requirement for the Secretary of Agriculture to establish minimum lane equipage standards;
6. a requirement for the Secretary of Agriculture to establish technical standards and operating rules; and
7. a requirement that state agencies use the National Universal Product Code (NUPC) database.

The provisions in this memorandum will be incorporated into the WIC program regulations through future rulemaking.

General

Legislative Change: Section 352(d) of PL 111-296 amends section 17(h) of the Child Nutrition Act of 1966 (42 USC 1786(h)) (CNA) by striking paragraph 12 and adding a new paragraph that adds several provisions related to EBT as noted below.

Definition

Pursuant to section 17(h)(12)(A)(i), provides a definition for the term “electronic benefit transfer”. Electronic benefit transfer means a food delivery system that provides benefits using a card or other access device approved by the Secretary that permits electronic access to WIC program benefits.

Implementation Date: This provision became effective on Oct. 1, 2010.

Current Regulatory Requirement: Federal WIC regulations (7 CFR 246.2) define both cash value vouchers and food instruments. Both terms include a reference to an EBT card as a means to obtain WIC food benefits.

Effect of PL 111-296: The definition for EBT, as provided in the section 352(d), will be added in section 246.2 of the Federal WIC regulations.

Statewide EBT Mandate by 2020 and Exemptions

Pursuant to section 17(h)(12)(B), each state agency must implement an EBT system throughout the state by Oct. 1, 2020, unless the Secretary grants a temporary exemption. The state agency will be responsible for coordination and implementation of their WIC EBT system.

The Secretary may grant temporary exemptions to the statewide EBT requirement if the state agency can demonstrate one or more of the following:

• There are unusual technological barriers to implementation;
• Operational costs are not affordable within the nutrition services and administration grant of the state agency; or,
• It is in the best interest of the program to grant the exemption.

Any state agency that requests a temporary exemption must specify a date by which the state agency anticipates statewide implementation.

Implementation Date: This provision became effective on Oct. 1, 2010.

Current Regulatory Requirement: No current requirement for EBT exists in Federal WIC regulations. However, section 246.12(b) allows state agencies to implement any of the three types of food delivery systems -- retail, home delivery or direct distribution. State agencies that use the retail delivery system may use checks, vouchers or EBT cards.

Effect of PL 111-296: All state agencies must implement a statewide EBT system no later than Oct. 1, 2020, unless granted an exemption from the Secretary.

EBT Status Report on Statewide Implementation

Pursuant to section 17(h)(12)(D), each WIC state agency must prepare and submit to the Food and Nutrition Service (FNS) an EBT project status report to demonstrate the progress of the state agency toward statewide implementation. If the state agency plans to incorporate additional programs in the electronic benefit transfer system of the state, it must consult with the state agency officials responsible for administering the programs prior to submitting the planning documents to FNS for approval. At a minimum, the EBT project status report must contain:

1. an annual outline of the electronic benefit transfer implementation goals and objectives of the state agency;
2. appropriate updates in accordance with approval requirements for active electronic benefit transfer state agencies; and
3. such other information as the Secretary may require.

Implementation Date: This provision became effective on Oct. 1, 2010.

Current Regulatory Requirement: None

Effect of PL 111-296: Each state agency, except those that are already operating an EBT system for all WIC foods, must prepare and submit an initial plan that outlines how and when the state agency plans to implement a statewide EBT system by Oct. 1, 2020. Once this plan is approved by the FNS regional office, an annual update is required that identifies the progress made toward accomplishing the statewide EBT goal, and such other information the Secretary may require.

FNS will notify state agencies of the date for the initial report under a separate memorandum.

Imposition of EBT Costs on Vendors

The following are changes made pursuant to section 17(h)(12)(E):

• Cost prohibition - except as otherwise provided in the Act, the Secretary may not impose, or allow a state agency to impose, the costs of any equipment or system required for EBT on any authorized vendor in order to transact EBT if the vendor equipment is used solely to support the WIC program.
• Cost sharing - the Secretary must establish criteria for cost-sharing by state agencies and vendors of costs associated with any equipment or system that is not solely dedicated to transacting EBT for the WIC Program;
• Processing Fees - a vendor that elects to accept EBT using multi-function equipment must pay commercial transaction processing costs and fees imposed by a third-party processor that the vendor elects to use to connect to the state agency’s EBT system;
• Interchange Fees - are disallowed for WIC EBT transactions;
• Statewide operations - after completion of statewide EBT implementation, state agencies may not be required to incur ongoing maintenance costs for vendors using multi-function systems and equipment to support EBT. Further, any retail store that applies for vendor authorization must demonstrate the capability to accept WIC benefits electronically prior to authorization, unless the state agency determines the vendor is necessary for participant access.

Implementation Date: These provisions became effective on Oct. 1, 2010.

Current Regulatory Requirement: Under section 246.12(g)(5) of the federal WIC regulations, state agencies may not impose the costs of EBT equipment, systems, or processing required for electronic benefit transfers on any retail store authorized to transact food instruments, as a condition for authorization or participation in the program. The state agency may allow retailer vendors to contribute to such costs on a voluntary basis.

Effect of PL 111-296: The Act clarifies the situations when a state agency can impose EBT costs or require retail vendors to pay such costs as a condition for authorization or program participation once the EBT system is implemented statewide. The Act relieves WIC state agencies, once they implement statewide, from the obligation to pay ongoing maintenance costs for EBT capable commercial equipment that is utilized to support the WIC program and other payment types.

Authorized vendors must also be required to pay processing fees if equipment is commercially obtained and utilized for WIC and other transactions. A vendor that elects to accept EBT using multi-function equipment must pay commercial transaction processing costs and fees imposed by a third-party processor the vendor elects to use for EBT. Processing fees cannot be charged to retail vendors who accept WIC EBT equipment from a state agency or its contracted EBT provider if the equipment is used solely for the WIC program.

Interchange fees are not permitted. These include interchange fees associated with WIC transactions that are routed through a payment network.

Finally, a state agency must require that any prospective retail grocery vendor seeking to become a WIC authorized vendor demonstrate the capability to accept an EBT benefit prior to authorization. A state agency may elect to supplement a portion or all of an applicant retail vendor’s costs to obtain an EBT capable cash register system in the event there is a need to ensure WIC participant access to their food benefits.

The criteria for cost-sharing will be addressed in future rulemaking.

Minimum Lane Coverage

Pursuant to section 17(h)(12)(F), the Secretary must establish minimum lane coverage guidelines for vendor equipment and systems used to support electronic benefit transfers. If a vendor does not elect to accept EBT using its own multi-function equipment, the state agency must provide such equipment as is necessary to solely support WIC EBT and to meet the established minimum lane coverage guidelines.

Implementation Date: This provision became effective on Oct. 1, 2010.

Current Regulatory Requirement: None

Effect of PL 111-296: Minimum lane coverage guidelines and provision of equipment requirements will be addressed in future rulemaking.

Technical Standards and Operating Rules

Pursuant to section 17(h)(12)(H), the Secretary must (1) establish technical standards and operating rules for EBT systems; and (2) require each state agency, contractor, and authorized vendor participating in the program to demonstrate compliance with the technical standards and operating rules.

Implementation Date: This provision became effective Oct. 1, 2010.

Current Regulatory Requirement: None

Effect of PL 111-296: All state agencies and any contractor and authorized retail vendor participating in a state agency WIC program, must implement WIC EBT systems using the Operating Rules and Technical Guidelines established by FNS. Draft WIC EBT Operating Rules and a Technical Implementation Guide have been developed by FNS in consultation with WIC state agencies, the EBT and cash register industries and food retail vendors. FNS expects to issue final WIC EBT Operating Rules and Technical Guidelines by Sept. 30, 2011.

National Universal Product Code (NUPC) Database

Legislative Change: Section 352(e) of PL111-296 amends Section 17(h) of the CNA by striking paragraph (13) and inserting a new paragraph that requires not later than two years after enactment of the Act, that the Secretary establish a national universal product code database to be used by all state agencies using an EBT system. Implementation Date: This provision was effective on Oct. 1, 2010.

Current Regulatory Requirement: None.

Effect of PL 111-296: PL 108-265, the Child Nutrition and WIC Reauthorization Act of 2004, required that the Secretary develop a national universal product code (NUPC) database for use with EBT systems. The NUPC database is operational and state agencies may now utilize it. After Dec. 13, 2012, state agencies will be required to use the NUPC in supporting their EBT operations.

WIC sate agencies should direct questions related to any of the above provisions to their respective FNS regional offices.

DEBRA R. WHITFORD
Director
Supplemental Food Programs Division