[Code of Federal Regulations]
[Title 32, Volume 2]
[Revised as of July 1, 2008]
From the U.S. Government Printing Office via GPO Access
[CITE: 32CFR199.23]

[Page 352-357]
 
                       TITLE 32--NATIONAL DEFENSE
 
        CHAPTER I--OFFICE OF THE SECRETARY OF DEFENSE (CONTINUED)
 
PART 199_CIVILIAN HEALTH AND MEDICAL PROGRAM OF THE UNIFORMED SERVICES 
 
Sec. 199.23  Special Supplemental Food Program.

    (a) General provisions. This section prescribes guidelines and 
policies for the delivery and administration of the Special Supplemental 
Food Program for Women, Infants, and Children Overseas (WIC Overseas 
Program). The purpose of the WIC Overseas Program is to provide 
supplemental foods and nutrition education, at no cost, to eligible 
persons and to serve as an adjunct to good health care during critical 
times of growth and development, in order to prevent the occurrence of 
health problems, including drug and other substance abuse, and to 
improve the health status of program participants. The benefit is 
similar to the benefit provided under the U.S. Department of Agriculture 
(USDA) administered Women, Infants, and Children (WIC) Program.
    (b) Definitions. For most definitions applicable to the provisions 
of this section, refer to sec. 199.2. The following definitions apply 
only to this section:
    (1) Applicant. Pregnant women, breastfeeding women, postpartum 
women, infants, and children who are

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applying to receive WIC Overseas benefits, and the breastfed infants of 
applicant breastfeeding women. This term also includes individuals who 
are currently participating in the Program but are re-applying because 
their certification is about to expire.
    (2) Breastfeeding women. Women up to 1-year postpartum who are 
breastfeeding their infants. Their eligibility will end on the last day 
of the month of their infant's first birthday.
    (3) Certification. The implementation of criteria and procedures to 
assess and document each applicant's eligibility for the Program.
    (4) Children. Persons who have had their first birthday but have not 
yet attained their fifth birthday. Their eligibility will end on the 
last day of the month of their fifth birthday.
    (5) Competent Professional Authority (CPA). An individual on the 
staff of the WIC Overseas office authorized to determine nutritional 
risk, prescribe supplemental foods, and design nutrition education 
programs. The following are authorized to serve as a competent 
professional authority: physicians, nutritionists, registered nurses, 
and dieticians may serve as a competent professional authority. 
Additionally, a CPA may be other persons designated by the regional 
program manager who meet the definition of CPA prescribed by the USDA as 
being professionally competent to evaluate nutritional risk. The 
definition also applies to an individual who is not on the staff of the 
WIC Overseas office but who is qualified to provide data upon which 
nutritional risk determinations are made by a competent professional 
authority on the staff of the local WIC Overseas office.
    (6) Contract brand. The brand of a particular food item that has 
been competitively selected by the DoD to be the exclusive supplier of 
that type of food item to the program.
    (7) Date-to-use. The date by which the drafts must be used to 
purchase food items.
    (8) Department. The Department of Defense (DoD), unless otherwise 
noted.
    (9) Dependent. (i) A spouse, or (ii) An unmarried child who is:
    (A) Under 21 years of age; or
    (B) Incapable of self-support because of mental or physical 
incapacity and is in fact dependent on the member for more than \1/2\ of 
the child's support; or
    (C) Is under 23 years of age, is enrolled in a full-time course of 
study in an institution of higher education and is in fact dependent on 
the member for more than one-half of the child's support.
    (10) Drafts. Paper food instruments, similar to vouchers, issued in 
the WIC Overseas offices to program participants. Participants may 
redeem their drafts at participating commissaries and NEXMARTs for the 
types and quantities of foods specified on the face of the draft.
    (11) Economic unit. All individuals contributing to or subsidizing 
the income of a household, whether they physically reside in that 
household or not.
    (12) Eligible civilian. An eligible civilian is a person who is not 
a member of the armed forces and who is:
    (i) A dependent of a member of the armed forces residing with the 
member outside the United States, whether or not that dependent is 
command sponsored, or
    (ii) An employee of a military department who is a national of the 
United States and is residing outside the United States in connection 
with such individual's employment or a dependent of such individual 
residing with the employee outside the United States; or
    (iii) An employee of a Department of Defense contractor who is a 
national of the United States and is residing outside the United States 
in connection with such individual's employment or a dependent of such 
individual residing with the employee outside the United States.
    (13) Family. A group of related or non-related individuals who are 
one economic unit.
    (14) Hematological test. A test of an applicant's or participant's 
blood as described in 7 CFR part 246.7(e).
    (15) Income guidelines. Income poverty guidelines published by the 
U.S. DHHS. These guidelines are adjusted annually by the Department of 
Health and Human Services (DHHS), with each annual adjustment effective 
July 1 of

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each year. For purposes of WIC Overseas Program income eligibility 
determinations, income guidelines shall mean the income guidelines 
published by the DHHS pertaining to the State of Alaska.
    (16) Infants. Persons under 1 year of age.
    (17) National of the U.S. A person who:
    (i) Is a citizen of the U.S.; or
    (ii) Is not a citizen of the United States, but who owes permanent 
allegiance to the United States, as determined in accordance with the 
Immigration and Nationality Act.
    (18) NEXMART. Navy Exchange Market.
    (19) Nutrition education. Individual or group sessions and the 
provision of materials designed to improve health status, achieve 
positive change in dietary habits, and emphasize relationships between 
nutrition and health, all in keeping with the individual's personal, 
cultural, and socioeconomic preferences.
    (20) Nutritional risk. (i) The presence of detrimental or abnormal 
nutritional conditions detectable by biochemical, physical, 
developmental or anthropometric data, or
    (ii) Other documented nutritionally related medical conditions, or
    (iii) Documented evidence of dietary deficiencies that impair or 
endanger health, or
    (iv) Conditions that directly affect the nutritional health of a 
person, such as alcoholism or drug abuse, or
    (v) Conditions that predispose persons to inadequate nutritional 
patterns, habits of poor nutritional choices or nutritionally related 
medical conditions.
    (21) Participants. Pregnant women, breastfeeding women, postpartum 
women, infants, and children who are receiving supplemental foods or 
food instruments under the WIC Overseas Program, and the breastfed 
infants of participant breastfeeding women.
    (22) Postpartum Women. Women up to 6 months after the end of their 
pregnancy. Their eligibility will end on the last day of the sixth month 
after their delivery.
    (23) Pregnant Women. Women determined to have one or more embryos or 
fetuses in utero. Pregnant women are eligible to receive WIC benefits 
through 6 weeks postpartum, at which time they reapply for the program 
as postpartum or breastfeeding women.
    (24) Rebate. The amount of money refunded under cost containment 
procedures to the Department from the manufacturer of a contract brand 
food item.
    (25) Regional Lead Agent. The designated major military medical 
center that acts as the regional lead agent, having tri-service 
responsibility for the development and execution of a single, integrated 
health care network.
    (26) Supplemental foods. Foods containing nutrients determined by 
nutritional research to be lacking in the diets of certain pregnant, 
breastfeeding, and postpartum women, infants, and children. WIC Overseas 
may substitute different foods providing the nutritional equivalent of 
foods prescribed by Domestic WIC programs, as required by 10 U.S.C. 
1060a(c)(1)(B).
    (27) Verification. Verification of drafts is a review before payment 
out of Defense Health Program funds to determine whether the commissary 
or NEXMART complied with applicable date-to-use, food specification, and 
other redemption criteria.
    (c) Certification of eligibility. (1) to the extent practicable, 
participants shall be certified as eligible to receive Program benefits 
according to income and nutritional risk certification guidelines 
contained in regulations published by the USDA pertaining to the Women, 
Infants, and Children program required under 7 CFR 246.7(d)(2)(iv)(B). 
Applicants must meet the following eligibility criteria:
    (i) Meet one of the participant type requirements: be a member of 
the armed forces on duty overseas; a family member/dependent of a member 
of the armed forces on duty overseas; a U.S. national employee of a 
military department serving overseas; a family member of a U.S. national 
employee of a DoD contractor serving overseas; a family member of a U.S. 
national employee of a DoD contractor serving overseas;
    (ii) Reside in the geographic area served by the WIC Overseas 
office;
    (iii) Meet the income criteria specified in this section; and

[[Page 355]]

    (iv) Meet the nutrition risk criteria specified in this section.
    (2) In terms of income eligibility, the following apply:
    (i) The Department of Defense shall use the Alaska income poverty 
guidelines published by the DHHS for making determinations regarding 
income eligibility for the Program.
    (ii) Program income eligibility guidelines shall be adjusted 
annually to conform to annual adjustments made by the DHHS.
    (iii) For income eligibility, the Program may consider the income of 
the family during the past 12 months and the family's current rate of 
income to determine which indicator accurately reflects the family's 
status.
    (iv) A pregnant woman who is ineligible for participation in the 
Program because she does not meet income criteria shall be deemed 
eligible if the criteria would be met by increasing the number of 
individuals in her family (economic unit) by the number of children in 
utero.
    (v) The Program shall define income according to USDA regulations 
with regard to the USDA-administered WIC Program. In particular--
    (A) A basic allowance for housing is excluded from income as 
required by section 674 of the National Defense Authorization Act for 
Fiscal Year 2000.
    (B) The value of in-kind housing benefits is excluded from income as 
required under USDA regulations.
    (C) Cost of living allowances for duty outside the continental U.S. 
(OCONUS) is excluded from income as required under 7 CFR 
246.7(d)(2)(iv)(A)(2).
    (D) Public assistance and welfare payments are included in income.
    (3) Participants must be found to be at nutritional risk to be 
eligible for program benefits.
    (i) A Competent Professional Authority (CPA) shall determine if an 
applicant is at nutritional risk.
    (ii) At the request of the program, applicants shall provide, 
according to schedules set by the USDA in 7 CFR 246.7(e) (unless deemed 
impracticable), nutritional risk data as a condition of certification in 
the Program. Such data includes:
    (A) Anthropometric measurements,
    (B) The results of hematological tests,
    (C) Physical examination,
    (D) Dietary information, or
    (E) Developmental testing
    (iii) A pregnant woman who meets all other eligibility criteria and 
for whom a nutritional risk assessment cannot immediately be completed 
will be considered presumptively eligible to participate in the Program 
for a period up to 60 days.
    (iv) Infants under 6 months of age may be deemed to be at 
nutritional risk if the infant's mother was a Program participant during 
pregnancy or if medical records document that the mother was at 
nutritional risk during pregnancy.
    (v) Unless otherwise specified herein or in 7 CFR 246.7(e), required 
nutritional risk data shall be provided to, or obtained by, the WIC 
Overseas Program office within 90 days of enrollment.
    (4) In the event that it is impracticable for the WIC Overseas 
Program to adhere to the income and nutritional risk eligibility 
guidelines contained in USDA regulations, the Director, TRICARE 
Management Activity (TMA) may waive the Department's use of USDA WIC 
Program eligibility criteria by determining that it is impracticable to 
use these standards to certify participants in the WIC Overseas Program.
    (i) Such determination shall consider relevant practical, 
administrative, national security, financial factors and existing 
Department policies and their application to the population served by 
the WIC Overseas Program.
    (ii) Absent a written finding of impracticability described in 
section 199.23(c)(4), the eligibility criteria for the WIC program, 
contained in USDA regulations shall apply.
    (5) An applicant for the WIC Overseas Program who presents a valid 
WIC Program Verification of Certification card, which is issued to 
participants in the domestic WIC Program when they intend to move, shall 
be considered eligible for participation in the WIC Overseas Program for 
the duration of the individual's current domestic WIC certification 
period, as long as he/she is an eligible service/family member or 
eligible civilian/family member.

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    (d) Program benefits. (1) Drafts. WIC participants shall be issued 
drafts that may be redeemed for supplemental food prescribed under the 
program.
    (i) Drafts shall at a minimum list the food items to be redeemed and 
the date-to-use.
    (ii) Food items listed on the draft must be approved for use under 
the Program.
    (iii) Drafts generally shall allow for a three-month supply of food 
items for each participant, unless the participant's nutritional status 
necessitates more frequent contacts with the WIC Overseas office.
    (iv) Participating commissaries and NEXMARTS shall accept the drafts 
in exchange for approved food items.
    (v) Commissary and NEXMART personnel shall be trained on 
verification and processing of drafts.
    (vi) Program guidelines shall provide for training of new 
participants in how to redeem drafts.
    (2) Supplemental Food. Participants shall redeem drafts for 
appropriate food packages at intervals determined in accordance with the 
USDA regulations.
    (i) The Director, TMA shall identify to the Defense Commissary 
Agency (DeCA) and NEXCOM a list of food items approved for the WIC 
Overseas Program. This list shall be developed in consultation with the 
USDA and shall include information regarding the appropriate package 
and/or container sizes and quantities available for participants, as 
well as the frequency with which food items can be acquired. Additions 
and/or deletions of food items from this list shall be communicated to 
the commissaries and NEXMARTS on an ongoing basis.
    (ii) A CPA shall prescribe appropriate foods from among the approved 
list to be included in food packages.
    (iii) A CPA shall coordinate documentation of medical need when such 
documentation is a prerequisite for prescribing certain food items.
    (iv) The Director, TMA may authorize changes regarding the 
supplemental foods to be made available in the WIC Overseas Program when 
local conditions preclude strict compliance or when such compliance is 
impracticable.
    (3) Nutrition Education. Nutrition education shall be provided to 
all participants at intervals prescribed in USDA regulations at 7 CFR 
Part 246.11.
    (i) The WIC Overseas nutrition education program shall be locally 
overseen by a CPA based on guidance and materials provided by TMA.
    (ii) Nutrition education and its means of delivery be tailored to 
the greatest extent practicable to the specific nutritional, cultural, 
practical, and other needs of the participant. Participant profiles 
created during certification may be used in designing appropriate 
nutrition education. A CPA may develop individual care plans, as 
necessary, consistent with USDA regulations.
    (iii) Nutrition education shall consist of sessions wherein 
individual participants or groups of participants meet with a CPA in an 
interactive setting such that participants can ask, and the CPA can 
answer, questions related to nutrition practices. In addition, nutrition 
education shall utilize prepared educational materials and/or Internet 
sites. Both the sessions and the information materials shall be designed 
to improve health status, achieve positive change in dietary habits, and 
emphasize relationships between nutrition and health. Individual and 
group sessions can be accomplished through, among other things, face-to-
face meetings, remote tele-videoconferencing, real-time computer-based 
distance learning, or other means.
    (iv) Nutrition education services shall generally be provided to 
participants twice during each 6-month certification period, unless a 
different schedule is specified in USDA regulations.
    (v) The nutrition education program shall promote breastfeeding as 
the optimal method of infant nutrition, encourage pregnant participants 
to breastfeed unless contraindicated for health reasons, and educate all 
participating women about the harmful effects of substance abuse.
    (vi) Individual participants shall not be denied supplemental food 
due to the failure to attend scheduled nutrition education sessions.
    (e) Financial management. The Department shall establish procedures 
to

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provide for the verification of drafts prior to payment.
    (i) Verification may utilize sampling techniques.
    (ii) Payment of drafts shall be made out of Defense Health Program 
funds.
    (f) Rebate agreements. (1) DoD is authorized to enter into an 
agreement with a manufacturer of a particular brand of a food item that 
provides for the exclusive supply to the program of the same or similar 
types of food items by that manufacturer.
    (i) The agreement shall identify a contract brand of food item.
    (ii) Under the agreement, the manufacturer shall rebate to the 
Department an agreed portion of the amounts paid by DoD for the 
procurement of the contract brand.
    (2) The DoD shall use competitive procedures under title 10, chapter 
137 to select the contract brand.
    (3) Amounts rebated shall be credited to the appropriation available 
for carrying out the program and shall be applied against expenditures 
for the program in the same period as the other sums in the 
appropriation.
    (g) Administrative appeals and civil rights. (1) Applicants who are 
denied certification or participants that are denied recertification 
shall be provided with a notice of ineligibility. The notice shall 
include information on the applicant's right to appeal the determination 
and instructions on doing so.
    (2) Benefits shall not be provided while an appeal is pending when 
an applicant is denied benefits, a participant's certification has 
expired or a participant becomes categorically ineligible.
    (3) A request for appeal shall be submitted in writing within five 
working days. If the decision is an adverse one it shall include notice 
to the applicant of his further appeal rights as reflected in (iii) 
below, and that he/she has five working days to effect any such appeal.
    (4) Appeal reviews shall be conducted in the first instance by the 
CPA or team leader in charge of the local WIC Overseas office.
    (i) Written notice of a decision shall be provided to the applicant 
within five working days.
    (ii) If the appeal is upheld, retroactive benefits shall not be 
provided.
    (iii) At an applicant's request a denied appeal may be forwarded to 
the regional program manager for review, who will provide a decision on 
the appeal within 5 working days.
    (iv) If the regional program manager denies the appeal, there shall 
be no further right of appeal.
    (5) Complaints about discriminatory treatment shall be handled in 
accordance with procedures established at each local WIC Overseas site.
    (h) Operations and Administration. (1) Information collected about 
WIC Overseas applicants and participants shall be collected, maintained, 
and disclosed in accordance with applicable laws and regulations.
    (2) Information and personnel security requirements shall be 
consistent with applicable laws and regulations.

[69 FR 15678, Mar. 26, 2004]