[Code of Federal Regulations]
[Title 7, Volume 4]
[Revised as of January 1, 2007]
From the U.S. Government Printing Office via GPO Access
[CITE: 7CFR246.26]

[Page 401-404]
 
                          TITLE 7--AGRICULTURE
 
    CHAPTER II--FOOD AND NUTRITION SERVICE, DEPARTMENT OF AGRICULTURE
 
PART 246_SPECIAL SUPPLEMENTAL NUTRITION PROGRAM FOR WOMEN, INFANTS AND 
 
                   Subpart G_Miscellaneous Provisions
 
Sec.  246.26  Other provisions.

    (a) No aid reduction. The value of benefits or assistance available 
under the Program shall not be considered as income or resources of 
participants or their families for any purpose under Federal, State, or 
local laws, including, but not limited to, laws relating to taxation, 
welfare and public assistance programs.
    (b) Statistical information. FNS reserves the right to use 
information obtained under the Program in a summary, statistical or 
other form which does not identify particular individuals.
    (c) Medical information. FNS may require the State or local agencies 
to supply medical data and other information collected under the Program 
in a form that does not identify particular individuals, to enable the 
Secretary or the State agencies to evaluate the effect of food 
intervention upon low-income individuals determined to be at nutritional 
risk.

[[Page 402]]

    (d) Confidentiality of applicant and participant information--(1) 
WIC purposes. (i) Confidential applicant and participant information is 
any information about an applicant or participant, whether it is 
obtained from the applicant or participant, another source, or generated 
as a result of WIC application, certification, or participation, that 
individually identifies an applicant or participant and/or family 
member(s). Applicant or participant information is confidential, 
regardless of the original source and exclusive of previously applicable 
confidentiality provided in accordance with other Federal, State or 
local law.
    (ii) Except as otherwise permitted by this section, the State agency 
must restrict the use and disclosure of confidential applicant and 
participant information to persons directly connected with the 
administration or enforcement of the WIC Program whom the State agency 
determine have a need to know the information for WIC Program purposes. 
These persons may include, but are not limited to: personnel from its 
local agencies and other WIC State or local agencies; persons under 
contract with the State agency to perform research regarding the WIC 
Program, and persons investigating or prosecuting WIC Program violations 
under Federal, State or local law.
    (2) Non-WIC purposes. (i) Use by WIC State and local agencies. Any 
WIC State or local agency may use confidential applicant and participant 
information in the administration of its other programs that serve 
persons eligible for the WIC Program in accordance with paragraph (h) of 
this section.
    (ii) Disclosure to public organizations. The State agency and its 
local agencies may disclose confidential applicant and participant 
information to public organizations for use in the administration of 
their programs that serve persons eligible for the WIC Program in 
accordance with paragraph (h) of this section.
    (3) Child abuse and neglect reporting. Staff of the State agency and 
its local agencies who are required by State law to report known or 
suspected child abuse or neglect may disclose confidential applicant and 
participant information without the consent of the participant or 
applicant to the extent necessary to comply with such law.
    (4) Release forms. Except in the case of subpoenas or search 
warrants (see paragraph (i) of this section), the State agency and its 
local agencies may disclose confidential applicant and participant 
information to individuals or entities not listed in this section only 
if the affected applicant or participant signs a release form 
authorizing the disclosure and specifying the parties to which the 
information may be disclosed. The State or local agency must permit 
applicants and participants to refuse to sign the release form and must 
notify the applicants and participants that signing the form is not a 
condition of eligibility and refusing to sign the form will not affect 
the applicant's or participant's application or participation in the WIC 
Program. Release forms authorizing disclosure to private physicians or 
other health care providers may be included as part of the WIC 
application or certification process. All other requests for applicants 
or participants to sign voluntary release forms must occur after the 
application and certification process is completed.
    (5) Access to information by applicants and participants. The State 
or local agency must provide applicants and participants access to all 
information they have provided to the WIC Program. In the case of an 
applicant or participant who is an infant or child, the access may be 
provided to the parent or guardian of the infant or child, assuming that 
any issues regarding custody or guardianship have been settled. However, 
the State or local agency need not provide the applicant or participant 
(or the parent or guardian of an infant or child) access to any other 
information in the file or record such as documentation of income 
provided by third parties and staff assessments of the participant's 
condition or behavior, unless required by Federal, State, or local law 
or policy or unless the information supports a State or local agency 
decision being appealed pursuant to Sec.  246.9.
    (e) Confidentiality of vendor information. Confidential vendor 
information is any information about a vendor

[[Page 403]]

(whether it is obtained from the vendor or another source) that 
individually identifies the vendor, except for vendor's name, address 
and authorization status. Except as otherwise permitted by this section, 
the State agency must restrict the use or disclosure of confidential 
vendor information to:
    (1) Persons directly connected with the administration or 
enforcement of the WIC Program or the Food Stamp Program who the State 
agency determines have a need to know the information for purposes of 
these programs. These persons may include personnel from its local 
agencies and other WIC State and local agencies and persons 
investigating or prosecuting WIC or Food Stamp Program violations under 
Federal, State, or local law;
    (2) Persons directly connected with the administration or 
enforcement of any Federal or State law. Prior to releasing the 
information to one of these parties (other than a Federal agency), the 
State agency must enter into a written agreement with the requesting 
party specifying that such information may not be used or redisclosed 
except for purposes directly connected to the administration or 
enforcement of a Federal, or State law; and
    (3) A vendor that is subject to an adverse action, including a 
claim, to the extent that the confidential information concerns the 
vendor subject to the adverse action and is related to the adverse 
action.
    (f) Confidentiality of Food Stamp Program retailer information. 
Except as otherwise provided in this section, the State agency must 
restrict the use or disclosure of information about Food Stamp Program 
retailers obtained from the Food Stamp Program, including information 
provided pursuant to Section 9(c) of the Food Stamp Act of 1977 (7 
U.S.C. 2018(c)) and Sec.  278.1(q) of this chapter, to persons directly 
connected with the administration or enforcement of the WIC Program.
    (g) USDA and the Comptroller General. The State agency must provide 
the Department and the Comptroller General of the United States access 
to all WIC Program records, including confidential vendor, applicant and 
participant information, pursuant to Sec.  246.25(a)(4).
    (h) Requirements for use and disclosure of confidential applicant 
and participant information for non-WIC purposes. The State or local 
agency must take the following steps before using or disclosing 
confidential applicant or participant information for non-WIC purposes 
pursuant to paragraph (d)(2) of this section.
    (1) Designation by chief State health officer. The chief State 
health officer (or, in the case of an Indian State agency, the governing 
authority) must designate in writing the permitted non-WIC uses of the 
information and the names of the organizations to which such information 
may be disclosed.
    (2) Notice to applicants and participants. The applicant or 
participant must be notified either at the time of application (in 
accordance with Sec.  246.7(i)(11)) or through a subsequent notice that 
the chief State health officer (or, in the case of an Indian State 
agency, the governing authority) may authorize the use and disclosure of 
information about their participation in the WIC Program for non-WIC 
purposes. This statement must also indicate that such information will 
be used by State and local WIC agencies and public organizations only in 
the administration of their programs that serve persons eligible for the 
WIC Program.
    (3) Written agreement and State plan. The State or local agency 
disclosing the information must enter into a written agreement with the 
other public organization or, in the case of a non-WIC use by a State or 
local WIC agency, the unit of the State or local agency that will be 
using the information. The State agency must also include in its State 
plan, as specified in Sec.  246.4(a)(24), a list of all organizations 
(including units of the State agency or local agencies) with which the 
State agency or its local agencies has executed or intends to execute a 
written agreement. The written agreement must:
    (i) Specify that the receiving organization may use the confidential 
applicant and participant information only for:
    (A) Establishing the eligibility of WIC applicants or participants 
for the programs that the organization administers;

[[Page 404]]

    (B) Conducting outreach to WIC applicants and participants for such 
programs;
    (C) Enhancing the health, education, or well-being of WIC applicants 
or participants who are currently enrolled in such programs, including 
the reporting of known or suspected child abuse or neglect that is not 
otherwise required by State law;
    (D) Streamlining administrative procedures in order to minimize 
burdens on staff, applicants, or participants in either the receiving 
program or the WIC Program; and/or
    (E) Assessing and evaluating the responsiveness of a State's health 
system to participants' health care needs and health care outcomes; and
    (ii) Contain the receiving organization's assurance that it will not 
use the information for any other purpose or disclose the information to 
a third party.
    (i) Subpoenas and search warrants. The State agency may disclose 
confidential applicant, participant, or vendor information pursuant to a 
valid subpoena or search warrant in accordance with the following 
procedures:
    (1) Subpoena procedures. In determining how to respond to a subpoena 
duces tecum (i.e., a subpoena for documents) or other subpoena for 
confidential information, the State or local agency must use the 
following procedures:
    (i) Upon receiving the subpoena, immediately notify its State 
agency;
    (ii) Consult with legal counsel for the State or local agency and 
determine whether the information requested is in fact confidential and 
prohibited by this section from being used or disclosed as stated in the 
subpoena;
    (iii) If the State or local agency determines that the information 
is confidential and prohibited from being used or disclosed as stated in 
the subpoena, attempt to quash the subpoena unless the State or local 
agency determines that disclosing the confidential information is in the 
best interest of the Program. The determination to disclose confidential 
information without attempting to quash the subpoena should be made only 
infrequently; and,
    (iv) If the State or local agency seeks to quash the subpoena or 
decides that disclosing the confidential information is in the best 
interest of the Program, inform the court or the receiving party that 
this information is confidential and seek to limit the disclosure by:
    (A) Providing only the specific information requested in the 
subpoena and no other information; and,
    (B) Limiting to the greatest extent possible the public access to 
the confidential information disclosed.
    (2) Search warrant procedures. In responding to a search warrant for 
confidential information, the State or local agency must use the 
following procedures:
    (i) Upon receiving the search warrant, immediately notify its State 
agency;
    (ii) Immediately notify legal counsel for the State or local agency;
    (iii) Comply with the search warrant; and,
    (iv) Inform the individual(s) serving the search warrant that the 
information being sought is confidential and seek to limit the 
disclosure by:
    (A) Providing only the specific information requested in the search 
warrant and no other information; and
    (B) Limiting to the greatest extent possible the public access to 
the confidential information disclosed.

[50 FR 6121, Feb. 13, 1985, as amended at 53 FR 35301, Sept. 13, 1988; 
65 FR 83288, Dec. 29, 2000; 71 FR 56731, Sept. 27, 2006]